Rule of Law vs Majoritarian Democracy 9781509936847, 9781509936878, 9781509936861

Table of contents :
Table of Contents
List of Contributors
1. Introduction
Further Reading
PART ONE: WHAT IS THE RULE OF LAW ABOUT?
2. Rule of Law between the Seventeenth and Nineteenth Centuries
Premise
I. The Rule of Law: the Meanings of the Term
II. The Eighteenth Century: the Historical Context
III. Against the Reason of State (Ragion di Stato)
IV. Limiting Absolute Power
V. The First Statement: the English Constitutional Monarchy and the Doctrine of John Locke
VI. Montesquieu: Liberty and Separation of Powers
VII. The American Revolution
VIII. The 'Manifesto' of the Rule of Law: the French Declaration of Rights of 1789
IX. The Crisis of the Rule of Law
X. Epilogue
3. Rule of Law Metamorphoses in the Twentieth Century
I. History And/Of Rule of Law
II. Rule of Law in the Twentieth Century: a Complex and Polysemic Legacy
III. A Turning Point: Rule of Law in the Course of the 1920s
IV. Misusing the 'Rule of Law'
V. Post-World War II Constitutional Rule of Law: a New Phase, Old Issues
4. Rule of Law and Democracy
I. Tension and Interdependence
II. Democracy's Relationship with the Rule of Law
III. Rule of Law's Relationship with Democracy
IV. New Threats
5. EU Rule of Law: The State of Play Following the Debates Surrounding the 2019 Commission's Communication
I. Introduction
II. The Rule of Law Debate of the Commission – Scope, Topic, Outcome
III. July 2019 Communication
IV. What is Missing in this Picture?
V. Conclusion
PART TWO: THE PEOPLE
6. The People vs Democracy? The Populist Challenge to Judicial Review
I. Introduction
II. The Populist Moment
III. Constitutional Anxieties: Back to Bckenfrde and Bickel
IV. Defending Judicial Review by Redefining Democracy
V. Conclusion: Which 'People' v Which 'Democracy'?
7. Proceduralising the People: Deliberative Democracy, Majority Rule and the Rule of Law
I. Introduction
II. Proceduralism and Democratic Theory
III. Deliberation and Voting: Consensus and Majorities
IV. Proceduralism Revisited: Co-originality
V. Self-government and the People
VI. Public Sphere in a Deliberative System
VII. Referendums
VIII. Conclusion
8. Elite vs People
I. The Rise and Fall of Elites: Closure, Circulation, Interlocking
II. Reconciling Sovereignty of the People and Government of the Elite: a Matter of Conventions
III. The People Against the Elite: the Populist Challenge
9. The Double Fiction of the People
I. Sovereignty and the People
II. Schmitt's People as 'a Political Unity' and the Identity Principle
III. The Double Fiction of the People in the Kelsenian Conception of Democracy
IV. Constitutional Democracies: Common Elements
V. The Populist Challenge
VI. The People's Values as a Key Factor of the Constitution's Legitimacy
VII. Identity as Sameness and Identity as Selfhood
VIII. The Role of Habits in Ensuring Constitutional Legitimacy
IX. The Waning of a Long-sighted Perspective of Politics
X. The New Communicative System and 'the Eternal Present'
XI. Is the Double Fiction of the People Reappearing?
XII. Elite's Detachment from the People and People's Detachment from the Constitution
10. Stronger Together? Populist (and Non-Populist) Politics of Peoplehood
I. The Populist Politics of Peoplehood
II. Weaker Together, Stronger Apart?
III. Towards a Non-Populist Account of the People
11. Does Illiberal Democracy Exist?
I. Illiberal Theories
II. Illiberal Societies
III. Conclusion
12. Majority Rule, Democracy and Populism: Theoretical Considerations
I. Rationales for Majority Rule: Three Non-Starters
II. Three Conceptions of Political Equality
III. Equality of Political Opportunity and Majority Rule
IV. Political Equality, Majority Rule, and Populism
13. The Role of New Technologies in Deliberative Democracy
I. Introduction
II. Deliberative Democracy and Political Legitimacy
III. Democracy and Collective Intelligence (CI)
IV. New Technologies and Deliberative Democracy
PART THREE: DEMOCRACY AND ITS ENEMIES
14. Is Democracy Still the Worst Form of Government Except All Others?
I. Introduction
II. Democracy, Democracies, Adjectives
III. Backsliding, Erosion, Alternatives
IV. Conclusion
15. The Old-Fashioned (or Out of Fashion?) Prohibition on the Imperative Mandate
I. The Old-Fashioned Prohibition on the Imperative Mandate
II. Is the Prohibition on the Imperative Mandate Out of Fashion?
III. Conclusions
16. Party Fatigue in European Democracies
I. Introduction
II. The Long Journey to Party Legitimacy
III. Present Discontent: Roots and Evolution
IV. Conclusions
17. Market Power and Democracy
18. Economic Crisis and Liberal Democracies
I. Introduction
II. The Crisis of Post-war 'Embedded Liberalism' and the Rise of Neoliberalism
III. The Great Recession and its Impact on Liberal Democracies
IV. The Role of Economic Factors in Explaining Populism in Advanced Liberal Democracies
V. Conclusions
VI. Addendum: The Covid-19 Crisis and its Possible Impact on Liberal Democracies
19. Social Identities, Borders and Majorities
I. Social Identities
II. Borders as Distinction
III. People and National Identity
IV. Collective Identities and the Majoritarian Principle
V. Identities: Paradoxes and Fictions. Conclusions.
PART FOUR: ELECTED AND NON-ELECTED
20. The Role of Judges in a Representative Democracy
21. Closely Observed Judges, or the Great Comeback of Authoritarianism in Poland
I. Introduction
II. Point of Departure: Polish Judiciary in 2015
III. Polish Judges and the Trap of 'Illiberal Legalism'. Diagnosis of the Causes and Effects of Political Changes in Poland in 2015–20
IV. Legitimacy of the Judiciary: a Hard Case of Poland
V. Final Considerations
Index

Citation preview

RULE OF LAW VS MAJORITARIAN DEMOCRACY What is more paradoxically democratic than a people exercising their vote against the rule of law and democracy? What happens when the will of the people and the rule of law are at odds? Some commentators note that the presence of illiberal political movements in the public arena of many Western countries demonstrates that their democracy is so inclusive and alive that it comprehends and countenances even undemocratic forces and political agendas. But what if, on the contrary, these were the signs of the deconsolidation of democracy instead of its good health? What if democratically elected regimes were to ignore constitutional principles representing the rule of law and the limits of their power? With contributions from judges and scholars from different backgrounds and nationalities this book explores the framework in which this tension currently takes place in several Western countries by focusing on four key themes: –– The rule of law: presenting a historical and theoretical reconstruction of the evolution of the rule of law; –– The people: dealing with a set of problems around the notion of ‘people’ and the forces claiming to represent their voice; –– Democracy and its enemies: tackling a variety of phenomena impacting on the traditional democratic balance of powers and institutional order; –– Elected and non-elected: focusing on the juxtaposition between judges (and, more generally, non-representative bodies) and the people’s representation.

ii

Rule of Law vs Majoritarian Democracy Edited by

Giuliano Amato, Benedetta Barbisan and

Cesare Pinelli

HART PUBLISHING Bloomsbury Publishing Plc Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, UK 1385 Broadway, New York, NY 10018, USA 29 Earlsfort Terrace, Dublin 2, Ireland HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2021 Copyright © The editors and contributors severally 2021 The editors and contributors have asserted their right under the Copyright, Designs and Patents Act 1988 to be identified as Authors of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www.nationalarchives.gov.uk/doc/ open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2021. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication data Names: Amato, Giuliano, editor.  |  Barbisan, Benedetta, editor.  |  Pinelli, Cesare, editor. Title: Rule of law vs majoritarian democracy / edited by Giuliano Amato, Benedetta Barbisan and Cesare Pinelli. Other titles: Rule of law versus majoritarian democracy Description: Oxford ; New York : Hart, 2021.  |  Includes bibliographical references and index. Identifiers: LCCN 2021024061 (print)  |  LCCN 2021024062 (ebook)  | ISBN 9781509936847 (hardback)  |  ISBN 9781509948376 (paperback)  | ISBN 9781509936861 (pdf)  |  ISBN 9781509936854 (Epub) Subjects: LCSH: Rule of law.  |  People (Constitutional law)  |  Democracy.  |  Populism. Classification: LCC K3171 . R859 2021 (print)  |  LCC K3171 (ebook)  |  DDC 340/.11—dc23 LC record available at https://lccn.loc.gov/2021024061 LC ebook record available at https://lccn.loc.gov/2021024062 ISBN: HB: 978-1-50993-684-7 ePDF: 978-1-50993-686-1 ePub: 978-1-50993-685-4 Typeset by Compuscript Ltd, Shannon To find out more about our authors and books visit www.hartpublishing.co.uk. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters.

Table of Contents List of Contributors�������������������������������������������������������������������������������������������� vii 1. Introduction��������������������������������������������������������������������������������������������������� 1 Giuliano Amato, Italian Constitutional Court PART ONE WHAT IS THE RULE OF LAW ABOUT? 2. Rule of Law between the Seventeenth and Nineteenth Centuries��������������������11 Paolo Alvazzi del Frate and Alberto Torini, University of Roma Tre 3. Rule of Law Metamorphoses in the Twentieth Century����������������������������������25 Luigi Lacchè, University of Macerata 4. Rule of Law and Democracy�������������������������������������������������������������������������43 Dieter Grimm, Wissenschaftskolleg zu Berlin 5. EU Rule of Law: The State of Play Following the Debates Surrounding the 2019 Commission’s Communication���������������������������������������������������������63 Barbara Grabowska-Moroz and Dimitry Vladimirovich Kochenov, CEU Democracy Institute PART TWO THE PEOPLE 6. The People vs Democracy? The Populist Challenge to Judicial Review�������������83 Justin Collings, Brigham Young University 7. Proceduralising the People: Deliberative Democracy, Majority Rule and the Rule of Law������������������������������������������������������������������������������������103 Simone Chambers, University of California at Irvine 8. Elite vs People����������������������������������������������������������������������������������������������121 Yves Mény, Scuola Superiore Sant’Anna 9. The Double Fiction of the People�����������������������������������������������������������������137 Cesare Pinelli, University of Rome Sapienza 10. Stronger Together? Populist (and Non-Populist) Politics of Peoplehood�����������157 Jan-Werner Müller, Princeton University

vi  Table of Contents 11. Does Illiberal Democracy Exist?�������������������������������������������������������������������171 Gábor Halmai, European University Institute 12. Majority Rule, Democracy and Populism: Theoretical Considerations����������189 Wojciech Sadurski, University of Sydney 13. The Role of New Technologies in Deliberative Democracy���������������������������199 José Luis Martí, Pompeu Fabra - Barcelona PART THREE DEMOCRACY AND ITS ENEMIES 14. Is Democracy Still the Worst Form of Government Except All Others?���������223 Gianfranco Pasquino, Alma Mater Studiorum Bologna 15. The Old-Fashioned (or Out of Fashion?) Prohibition on the Imperative Mandate�������������������������������������������������������������������������������243 Benedetta Barbisan, University of Macerata 16. Party Fatigue in European Democracies��������������������������������������������������������261 Piero Ignazi, Alma Mater Studiorum Bologna 17. Market Power and Democracy���������������������������������������������������������������������281 Antonio Cucinotta, University of Messina 18. Economic Crisis and Liberal Democracies����������������������������������������������������291 Moreno Bertoldi and Michele Salvati, University of Milan 19. Social Identities, Borders and Majorities�������������������������������������������������������315 Gian Primo Cella, University of Milan PART FOUR ELECTED AND NON-ELECTED 20. The Role of Judges in a Representative Democracy��������������������������������������335 Lord Mance, UK Supreme Court 21. Closely Observed Judges, or the Great Comeback of Authoritarianism in Poland��������������������������������������������������������������������������353 Małgorzata Gersdorf, Supreme Court of Poland, Mateusz Pilich, University of Warsaw Index�����������������������������������������������������������������������������������������������������������������397

List of Contributors Paolo Alvazzi del Frate is Professor of Legal History at the University of Roma Tre, Italy. Giuliano Amato is a judge of the Italian Constitutional Court, and Professor Emeritus at the EUI in Florence and at the University of Rome Sapienza, Italy. Benedetta Barbisan is Professor of Comparative Constitutional Law at the University of Macerata, Italy and Visiting Professor of Law at the Georgetown University Law Center, USA. Moreno Bertoldi is Special Adviser to the Ambassador and Head of the Economic and Financial Section at the Delegation of the European Union to the United States. Gian Primo Cella is Professor Emeritus of Social Theory and Economic Sociology at the University of Milan, Italy. Simone Chambers is Professor at the University of California, Irvine, USA. Justin Collings is Associate Dean and Professor of Law at Brigham Young University Law School, USA. Antonio Cucinotta is Associate Professor of Comparative Law at the University of Messina, Italy. Malgorzata Gersdorf is Full Professor of Labour Law at the Faculty of Law and Administration, University of Warsaw, Poland, and was Chief Justice of the Supreme Court of the Republic of Poland from 2014 to 2020. Barbara Grabowska-Moroz is Research Fellow, Rule of Law Research Group, CEU Democracy Institute, Budapest. Dieter Grimm is Professor of Law at Humboldt University Berlin and Permanent Fellow at the Wissenschaftskolleg zu Berlin (Institute for Advanced Study), and a former Justice of the Federal Constitutional Court of Germany. Gábor Halmai is Professor and Chair of Comparative Constitutional Law at the European University Institute, Italy. Piero Ignazi is Professor of Comparative Politics at the Department of Political and Social Sciences, University of Bologna, Italy. Dimitry Kochenov is Head of Rule of Law Research Group, CEU Democracy Institute, Budapest and Professor of Legal Studies at the Department of Legal Studies, CEU Vienna.

viii  List of Contributors Luigi Lacchè is Full Professor of Legal History at the University of Macerata, Italy. Lord Jonathan Mance is former Deputy President of the UK Supreme Court. José Luis Martí is Associate Professor of Legal and Political Philosophy at the Department of Law, Pompeu Fabra University, Spain. Yves Mény was President of the European University Institute in Florence, Italy from 2002 to 2009, and President of the Board of Directors at the Scuola Superiore Sant’Anna in Pisa, Italy from 2014 to 2018. Jan-Werner Müller is Professor of Politics at Princeton University, USA. Gianfranco Pasquino is Senior Adjunct Professor of European and Eurasian Studies at the Johns Hopkins University SAIS-Europe, Italy, and Professor Emeritus of Political Science at the University of Bologna, Italy. Mateusz Pilich is Associate Professor of Private International Law at the Faculty of Law and Administration, University of Warsaw, Poland. Cesare Pinelli is Professor of Constitutional Law at University of Rome Sapienza School of Law, and Substitute Member of the Venice Commission, Italy. Wojciech Sadurski is Challis Professor of Jurisprudence at the University of Sydney, Australia. Michele Salvati is Emeritus Professor of Economics at the University of Milan, Italy. Alberto Torini is Research Fellow at the Department of Law, University of Roma Tre, Italy.

1 Introduction GIULIANO AMATO*

T

his book deals with something the lovers of democracy generously hope would never happen. Indeed, years ago nobody expected it to happen. The adjective ‘majoritarian’ simply indicated one of the features of democracy, due to which, one way or another, the Government should rely on the will of the majority. However, such will being the fundamental pillar of any democratic form of government, we took it for granted that the rule of law was more than compatible with it. Respecting human rights and setting limits against the abusive use of power, first of all an independent judiciary, are the main implications of the rule of law. Are they not inherent to the notion of democracy itself, which is much more complex than respecting the will of the majority? In this sense any democracy should be both majoritarian and liberal. What has happened that has created tension between the rule of law and majoritarian democracy? Why is the will of the majority becoming intolerant towards the precepts of the rule of law? It is not occurring everywhere in our western societies, nor has this unexpected trend had the same intensity in every country where it has gained ground. Only in two European states, namely Hungary and Poland, can we speak of majoritarian democracies in the new sense. In most other states there are political parties supporting majoritarian democracy as a prospect and frequently gaining a good share of the electorate by doing so. Here, liberal democracy is still in place, despite running a new and disturbing risk. In any case, a more or less profound intolerance of the rule of law has entered into our societies. The most general explanation that is given goes to the economic and social consequences of globalisation in our western societies, accompanied by the ongoing technological revolution. The longstanding compromise between capitalism and liberal democracy, based on high employment and on the reasonable expectation of an increasingly equalitarian social structure, is over, because the circumstances that made it possible in the twentieth century are over. Now loss of jobs, reduction of income and paralysed economic and social ladders have entered the lives of the many, while the few are receiving an increasing share of the produced wealth. The many are

* Italian Constitutional Court.

2  Giuliano Amato dissatisfied with the pre-existing elites that have allowed globalisation to create such damages without defending them at all; those who live in Europe are also dissatisfied with the European Union, which they see as a transmission belt of globalisation; and several of them are ready to follow the leaders who preach closure against the world and closure against any newcomer who is perceived as a stealer of jobs and life opportunities. Whenever these feelings are shared by the majority, the impact upon the rule of law is inexorable. It is an undisputable fact that they lead both to a lesser respect for individual and minoritarian rights and to a distrustful wariness towards the institutions, not least of all the judiciary, whose task is to control and curb the power of the majority. This is precisely what is occurring in Hungary, where majoritarian democracy is already a fait accompli. However, even though the economy has played a paramount role, the transformation is not due to the economic consequences of globalisation. The main reason has been the regime change, that has increasingly disappointed the citizens precisely for its economic and social impact. After communism, democracy was expected to bring not only more freedom, but also economic prosperity and material improvement. To the contrary, vis-à-vis a new class of ‘plutocrats’ (who have certainly enjoyed a remarkable material improvement) most of the others, mainly those with a low level of education, have been losing jobs and income. In this context, Prime Minister Viktor Orban, who was born a liberal, discovered and is now successfully practicing illiberal democracy. On the assumption that liberal democracy, with all its protection of individual rights, promotes the selfish interests of the individuals, illiberal democracy proudly stands for the general interest of the nation, for the values mostly shared inside its community and for the protection of all those who live upon their work and accept the responsibility to work. Quite obviously this peculiar brand of democracy is not only illiberal, but also majoritarian and, as such, identifies the voice of the majority with the voice of the people, that no institution is entitled to contradict. Not surprisingly, in this new Hungary the traditional family prevails over other forms of family unions, minorities are not protected and immigrants are not allowed to enter. Nor is it surprising that institutional checks and balances are weakened to the advantage of governmental control. Poland is arriving at a similar outcome, both in terms of values and in terms of institutional setting, for reasons that have nothing to do with the economy and therefore widen the horizon of the tensions between the rule of law and majoritarian democracy. In the Polish case, the electoral appeal and the power of the current majority are based on the defence of the traditional values of a society still embedded in its conservative Catholicism, against the assault of the tolerant principles, the expanded individual rights and the transgressive (but admitted) habits of our western societies. What has become ordinarily accepted in these societies throughout decades of civil and social developments sounds foreign and hostile to many members of a society that has not undergone a similar renovation. Furthermore – and most interestingly in relation to our purposes here – the rejection directly involves the case law of the two European Courts (the European Court of Justice and the European Court of Human Rights), that have codified the abandonment of traditional principles to the advantage of new and advanced individual rights. Therefore, in the Polish case

Introduction  3 the conflict transparently is between majoritarian democracy and what the supranational guardians of the rule of law have been defending (or introducing?) in our legal systems. This last observation brings us to a further and disturbing reason to be considered in order to explain the conflict: may it also be that, beyond the economy and independently of it, the rule of law itself contributes to its own rejection? For sure the rule of law, by widening individual liberties far beyond their original range, has contributed to nurturing the reaction in the name of traditional values and also of national identities. Furthermore, when the grund norm becomes ‘nothing above the will of the people’, the main interpreters of the rule of law, the courts, fall under a well-known and widespread criticism: where does their legitimacy come from, as long as nobody has elected them? Even more so when European Courts are under fire: justice is generally administered in the name of the people (so several Constitutions assert). There is no demos in Europe. In the name of what people do these courts exercise their function? The case of the UK is exemplary. Brexit has been promoted to the end of ‘taking back control’ and one of the main adversaries to be neutralised was the European Court of Justice with its binding decisions. Undoubtedly the case of Brexit is an extreme one. However, in the continent the attention paid to the defence of national identities vis-à-vis a rule of law coming from the supranational order has also been higher and higher. It is a fact that national courts, and first of all constitutional courts, have been visibly adapting their role. Throughout the previous decades they had become the national terminals of that supranational order, accepted as the source of hierarchically superior norms and decisions. Recently they have increasingly been instances of control of the judicial decisions adopted at that level, in the name of national identities and principles they have defined as fundamental and therefore untouchable. It has to be said that the German Bundesverfassungsgericht has always asserted the existence of this red line, despite its flexibility in assessing the enduring distance from it of individual European decisions. However, these days this position is much more widely supported, also on the basis of the explicit safeguard the Lisbon Treaty offers to national identities. Other courts, such as the Italian Constitutional Court, have expressed their readiness to erect national ‘counter-limits’ against European decisions contrary to their national fundamental principles. Outside the Union, in the wider Europe of the ECHR, the amended Russian Constitution, that already proclaims its ‘highest legal force’, will openly deny validity to international treaties and decisions that ‘contradict’ its clauses. Must we conclude that the game between majoritarian democracy and the rule of law is over? At the moment, as far as Europe is concerned, it would be, to say the least, a hasty conclusion. First of all, the two Member States, Poland and Hungary, that have adapted their institutional frameworks to the demands of their newly formed majoritarian democracies, are still challenged by the institutions of the European Union. Some of their new arrangements, namely the reduction of judicial independence, are irrefutable violations of the Treaties. This is a still open controversy and it is not at all unlikely that ultimately the two majoritarian democracies will have to submit to the core of the rule of law. Secondly, the new attitude of our national courts vis-à-vis the European ones is not at all settled. The path of a reasonable

4  Giuliano Amato balance between the demands of national identities and the demands of the rule of law seems to be where they will try to go from here. We will return to this later on, but surely they cannot ignore that their own authority would be heavily diminished and eventually cancelled, should they appear completely subjugated by the will of the people. However, our future is not at all certain nor easily predictable. I would exclude the extreme prospect in which the rule of law is deprived of its historical and essential meaning while the rule by law (by whatever law the majority adopts) takes its place. Not only it is very unlikely in Europe, where the rule of law is a founding principle both of the Union and of the Council of Europe, but it is hard to foresee also in the wider world. The rule of law frequently happens to be more of an unaccomplished aim than a reality; furthermore, when entering into a variety of legal and cultural contexts ‘universal’ values necessarily multiply their own facets. Nonetheless, would anybody dare to openly challenge the Universal Declaration of Human Rights, whose clauses transparently enshrine single and eventually all the components of it? We cannot expect an undisturbed continuation of a rule of law which, even though codified by many of our national legal systems, is an essential part of a supranational order whose commands enter into such systems by decisions of supranational courts. In times of surge of national communities defending and prioritising their demands and their overall identities, when these communities feel ignored or not sufficiently considered, the risk of rejection (or, to say the least, of not compliance) is very high. Are there remedies to avoid or at least to reduce this undesirable effect? The first one, not at all new, is the margin of appreciation that mostly the European Court of Human Rights always has recognised as regards its Member States in controversial matters, upon which our national communities have diverging views. Before asserting that same sex couples are entitled to have their union registered, the Court has waited until a wide (even if not unanimous) consensus existed in the Member States. Let us be clear: the judicial use of the margin of appreciation is not a form of political opportunism. On the contrary, it directly goes to the fundamental issue raised by the rule of law as interpreted and enforced by supranational courts. We all agree that there cannot be democracy without the rule of law. Can there be rule of law without democracy? Where does its legitimacy (and the legitimacy of the corresponding courts) come from in a supranational order in which there is no demos and therefore no democracy? The only possible answer is that it comes from the demoi whose representatives have stipulated the Treaties and the Charters where the rule of law is embodied and have consequently accepted the jurisdiction of the respective courts. That being so, let us assume that one of these courts is deciding upon a controversial issue in relation to which only one individual state still dissents from the wide majority of the others. The (not sufficiently explored) issue is whether the Court could ignore the margin of appreciation, just because it would go to the benefit of only that state. It is a fact that in our domestic arenas we expect our own national courts to defer to the appreciation of their respective parliaments, whenever they have to decide on delicate matters where conflicting values play a paramount role. In such cases, the necessary balancing is for the representatives of the people, not for the judges. National judges are not entitled to supersede that balancing act unless it is manifestly unreasonable. Nor are they entitled to step in, while enduring divisions prevent a

Introduction  5 parliamentary decision on the matter, unless some right or principle protected by the Constitution is patently violated, due to this lack of action. Is a supranational court entitled to infringe these boundaries to the detriment of no more than one of the national communities under its jurisdiction, just because all of the others agree with its solution? As long as its jurisdiction is conferred and accepted by each and all of the Member States and by all the corresponding demoi, one might argue that there is no reason for one of them to be differently treated in a context where majority voting does not apply. Nor is it an answer that in the US the Supreme Court decided in 2015 (in Obergefell v Hodges1) that same sex couples had the right not only to be registered, but to get formally married like any other couple, despite several Member States being still contrary to such an extended equal treatment. However controversial such a decision might have been in the US, the fact of the matter is that there is a federation there, there is a federal demos, and there is a federal Constitution that is supreme. The underpinnings upon which our European Courts are installed are quite different. Their work aimed at the harmonisation of our national legal systems upon the basis of common principles is highly deserving. Furthermore – and here I refer to the Court of Justice of the European Union – the Europeanisation of our common constitutional traditions has greatly contributed to creating a precious crossfertilisation among the cultural identities of the Member States. Facing the current conflicts, it can also nurture a further step that has actually been suggested. Namely, in cases where constitutional identities are at stake, courts could turn to article 2 of the Treaty (where the ‘values common to the Member States’ are enshrined) instead of relying on article 4 (where the features of national identities that ‘the Union shall respect’ are listed). Should the European Court of Justice pave the way and some, leading constitutional courts proceed in the same direction (as a few of them – such as the Italian one – have already done), the temperature of the identity-based conflicts would hopefully be lowered. However, the fact remains that legitimacy both of the European Court of Human Rights and of the European Court of Justice comes from all the under signatories of the Treaties that provide for their jurisdiction. The principle of conferral, conferral by the Member States, is still the basic norm of our European treaties and organisations. The sensitive question on the margin of appreciation vis-à-vis the dissent of only one Member State may also remain open to further discussion. In any case, in the described context an appropriate (and not approximate) recognition not only of the common features, but also, when needed, of the specificities of national identities is more than recommended. With a proviso, that has to be clear: there are unsurmountable limits to such flexibility. When the rule of law is at stake, there are boundaries that cannot be crossed. Recognising a national margin of appreciation makes sense when confronting not unanimous views on the family, on parenthood, on giving life or giving death to others and on similarly moral issues. It is not the same when the representatives of the people, in order to make their decisions immune to any independent control, manipulate the judiciary and/or submit constitutional courts themselves to the will of the Executive. Or, even worse, when the Executive, seizing

1 576

U.S. 644 (2015).

6  Giuliano Amato upon the opportunity offered by an emergency, receives from its majority powers manifestly disproportionate to the needs of the emergency. Here no margin of appreciation is admissible. Here the rule of law is bluntly violated and any court, national or supranational as it might be, is under the obligation to declare it; whatever the consequence. An adequate balance between uniformity and the recognition of diversities will prove essential, not only to preserve the rule of law and its principles vis-à-vis the demands stemming from majoritarian democracy, but also to lower national hostilities against the outside world and first of all of the European Union. This lesson is being learnt by the European institutions in a time when much of the discredit and of the hostility against them has been due to the excess of uniformity of their regulations and directives. United in our diversities, which is not only the motto, but the founding principle of the Union, this would have required a much less simplistic pathway: namely, on the one side a wider use of mutual recognition (according to which national regulations remain also in the integrated market, as long as all of them comply with some common principles); on the other side not only directives, but also regulations that, whenever possible, the states are allowed to adapt to their specific contexts. Of course, we must be aware that the suggestions advanced here typically correspond to the requirements of the damage reduction theory: nothing less, but also nothing more. More can be accomplished only by removing the roots upon which in most of our countries the appeal of majoritarian democracy relies in order to gain ground. Is it an attainable aim? Perhaps it is, but the arena is the widest of all, namely the globalised economy that has been the main reason for the widespread anxieties and dissatisfactions to which we owe the new brand of majoritarian democracy. This crucial role of the economy has been the starting point of our reflections here. It should not be surprising that, in concluding, we are back to such a role. Among the scholars who study the economy, nobody thinks the developments ahead of us will ever restore the conditions that allowed our western societies in the past century to have high employment, increasing incomes, social mobility and bright prospects for the future Does this mean that low salaries, uncertain jobs, reduced social mobility and increasing inequalities (with all the social reactions they bring with themselves) will remain as permanent features of our societies? Here the answers are much more diversified and, even though under new and different conditions, a not so gloomy future is not excluded at all. It is not only Pope Francisco who says that an economy which is more egalitarian, more mindful of the overall interests of our societies and, in other words, more sustainable is not only desirable, but achievable. The Business Roundtable released in August 2019 a statement in which 181 CEOs of primary American companies expressed their commitment to deliver value to customers, to invest in employees, first of all compensating them fairly, and to support the communities where they work. Furthermore, scholarly doctrines are changing. Keynes might not return to be as influential as he was before the neo-liberal advent, but nowadays proactive policies aimed at reducing inequalities, promoting education and a newly balanced welfare, not to speak of preserving human life in the planet, are more and more widely recommended. Even more so, after the catastrophic impact of the coronavirus pandemic.

Introduction  7 Post neo-liberal policies are actually envisaged. Can they also be practised? What our societies and our governments have done in coping with the effects of the coronavirus has irrefutably demonstrated that they can. However, whether they can become ordinary policies is yet to be seen. Also to be seen is whether they can be successful in restoring economic and social conditions that allow the majority of our citizens to feel satisfied and confident again. Only at that point will the rule of law and its territory be safe. We don’t have the answers to these doubts. Nobody does. Our only possible conclusion is that the tension between the rule of law and majoritarian democracy does not necessarily lead to a final disruption of the rule of law: first, for the already mentioned resilience of the rule of law itself, secondly because the (though limited) remedies we have focused upon could produce a sustainable balance, and finally because majoritarian democracy might eventually turn out to be a temporary phenomenon. The only non-hypothetical conclusion we may draw is that democracy, and with it the rule of law, is strong and easily accepted and practised in the good times, while it meets many more difficulties in the bad times. Arguing that, due to this, democracy is just a regime for the good times would be too much. However, those who happen to rule a democratic country while the bad times are arriving, should be sufficiently alert as to take immediate action on behalf of the weakest segments of their society before it is too late, before others intervene and wipe them out in the name of majoritarian democracy. The rulers of the old times, before democracy was introduced, were well aware of the risk of revolts whenever the supply of foods was becoming scarce. This is why the price of bread and its own distribution had always been subject to public regulation. In ancient Rome already in the year 123 BC the first lex frumentaria was adopted, according to which bread wheat was to be sold by the state to all Roman citizens at a fixed and lower price. The Assisa Panis et Cervisa, an English code establishing special rules for the sale of bread, was issued in 1266 and remained in force in the London area until 1815. So it was in several other European states and cities and whenever, due to acute and unexpected shortages, the price was not promptly lowered, bread riots were the almost inevitable response (Alessandro Manzoni made the bread riot of Milan in 1628 famous in his novel I promessi sposi). Democracies should never forget this lesson. The price they are currently paying to their majoritarian version is largely due to the fact that in the years following the outburst of the economic and financial crisis of 2008 the lesson was totally ignored.

FURTHER READING On democracy and populism: I Krastev, ‘The Age of Populism. Reflections on the Self Enmity of Democracy’ (2011) European View 11. L Diamond, ‘Facing up to Democracy Recession’ (2015) 26(1) Journal of Democracy n 26. B Milanovic, Global Inequality. A New Approach for the Age of Globalization (Harvard University Press, 2016).

8  Giuliano Amato M Lilla, The Once and Future Liberalism. After Identity Politics (Harper Collins, 2017). S Levitsky and D Ziblatt, How Democracies die. What History Reveals About Our Future (Penguin, 2018). On Poland: W Sadurski, How Democracy Dies (in Poland): A Case Study of Anti-Constitutional Populist Backsliding (Sydney Law School, Legal Studies Research Paper n. 18/01, 2018). On Hungary: A Biro-Nagy, Illiberal Democracy in Hungary: The Social Background and Practical Steps of Building an Illiberal State (Cidop, 2017). On the rule of law and democracy in the global context: M Bussani, ‘Deglobalizing Rule of Law and Democracy: Hunting Down Rhetoric Through Comparative Law’ (2019) 67 American Journal of Comparative Law 701. On the rule of law as enforced by supranational courts: D Lasting and J Weiler, ‘Judicial Review in the Contemporary World – Retrospective and Prospective’ (2018) I-CON, International Journal of Constitutional Law 2. LD Spieker, ‘Framing and Managing Constitutional Identity Conflicts: How to Stabilize the Modus Vivendi Between the Court of Justice and National Constitutional Courts’ (2020) 57 Common Market Law Review 361. Specifically, on the margin of appreciation: A Legg, The Margin of Appreciation in International Human Rights: Deference and Proportionality (OUP, 2012). P Agha, Human Rights Between Law and Politics: The Margin of Appreciation in Post-National Contexts (Hart Publishing, 2017). JH Fahner, Judicial Deference in International Adjudication (Hart Publishing, 2020). Cases: The Bundesverfassungsgericht and the defence of national prerogatives: Lisbon Urteil, 30 June 2009. The Italian Constitutional Court between common constitutional values and national counter-limits: ord. 26 January 2017 n.24 on the Taricco case. The European Court of Human Rights and same sex couples: Oliari and others v Italy, 21 July 2015. The US Supreme Court and same sex couples: Obergefell v Hodges 576 U.S. 644 (2015).

Part One

What is the Rule of Law About?

10

2 Rule of Law between the Seventeenth and Nineteenth Centuries PAOLO ALVAZZI DEL FRATE AND ALBERTO TORINI*

PREMISE

T

he current legal definition of the rule of law taken as a reference is the one formulated by the United Nations in 2004 under the Report of the Secretary-General. According to this definition, the rule of law represents

a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.1

In this chapter, we intend to focus on the historical perspective trying to restore the original meaning of the term, in order to outline its development, in particular during the eighteenth and nineteenth centuries, a crucial period for political and legal thought due to the affirmation of constitutionalism in Europe and North America. I.  THE RULE OF LAW: THE MEANINGS OF THE TERM

Sometimes, political and legal terms, when used in a non-juridical debate, risk losing their real essence and simplifying themselves in a generic and non-scientific meaning. Certainly, the expression ‘rule of law’ runs said risk.2 Indeed, it may simply refer to * Both University of Rome 3. Although the article was devised and discussed jointly by the two authors, the premise and sections I–V were written by Paolo Alvazzi del Frate and sections VI–X by Alberto Torini. 1 UN, Report of the Secretary-General. The rule of law and transitional justice in conflict and postconflict societies, (S/2004/616), III.6. ‘The rule of law – according to Tamanaha – means that government officials and citizens are bound by and abide by the law’; BZ Tamanaha, ‘The history and elements of the rule of law’ (2012) Singapore Journal of Legal Studies 233. 2 By way of example, as it is stated by Martin Krygier ‘the rule of law is today the beneficiary, sometimes the victim, of enormous rhetorical enthusiasm. No one is against. Once upon a time, and not too long ago,

12  Paolo Alvazzi del Frate and Alberto Torini the ‘respect for legal rules’, whose use is ‘trivialized and ritualized’,3 regardless of its historical genesis which, only separately considered, is able to clarify the meaning of such an expression. In light of the above, the political speech about the rule of law principle has incorporated, even in their significant diversity, the German Rechtsstaat and the French État de droit. Certainly, the current meaning of this expression has changed more and more in order to become broad, symbolic and full of emotion. It can be summarised with the guarantee of the rights of freedom and the principle of equality of people before the law.4 It is certainly very difficult to properly define the content of the expression rule of law, since it is characterised by vague and sometimes misleading different meanings. The rule of law includes different legal and political principles, put together by the intention of establishing ‘government by laws and not by individuals’. This means the replacement of the ‘government of individuals’, considered arbitrary and potentially despotic, with the ‘government of laws’, characterised by the compliance with formal legal rules. The origin of the principle of rule of law is ancient, but only in the sixteenth and seventeenth centuries did it become more clarified, initially in the English politicaljuridical culture and afterwards it was established in North America and continental Europe in the eighteenth century. Preliminarily, it has to be noted that through the doctrine of the rule of law it has been possible to oppose freedom to absolutism, to claim the importance of rights by arguing the autonomy of individuals against the oppression arbitrary power. Therefore, the doctrine of the rule of law is a fundamental element of legal history, the study of which is essential in order to understand the development of the society. The analysis shall necessarily move from the eighteenth century, which was characterised by the cult of reason and by an exasperated rationalism. This period – according to Pietro Costa’s words – corresponds to a ‘deep change in the political lexicon which took place in Europe during the Enlightenment’, a phenomenon that had already started in the seventeenth century.5 The British expression ‘rule of law’, the German one Rechtsstaat and French one État de droit, make reference to partially different concepts and principles, aimed, however, at achieving the same purpose, namely the overcoming of absolutism, due to the affirmation of citizens’ rights of liberty and equality.6 it had a lot of enemies’: M Krygier, ‘On the Rule of Law. History, Politics, Theory by Brian Z. Tamanaha’ (2005) 32(4) Journal of Law and Society 657–66. 3 J Chevallier, L’État de droit, 3rd edn (Montchrestien, 1999) 8. The État de droit ‘omniprésent dans le discours politique, il est devenu l’un de ces mots “passe-partout”, “omnibus”, qui recouvre des significations variées … son usage tend à se banaliser et à se ritualiser’. 4 See P Craig, ‘Formal and substantive conceptions of the rule of law: an analytical framework’ (1997) 21 Public Law 467–87. 5 P Costa, ‘The Rule of Law. A Historical Introduction’ in P Costa and D Zolo (eds), The Rule of Law. History, Theory and Criticism (Springer, 2007) 77. 6 The rule of law has been the subject of almost exterminated literature, among which, please consider the following most recent works: BZ Tamanaha, On The Rule of Law: History, Politics, Theory (CUP, 2004); T Bingham, The Rule of Law (Penguin, 2010); J Waldron, ‘The Rule of Law’ in EN Zalta (ed),

Rule of Law between the Seventeenth and Nineteenth Centuries  13 The first and most known definition of rule of law is certainly the one provided by the historian and jurist Albert Dicey (1835–1922)7 who, in 1885, highlighted three fundamental aspects of the principle in the British legal system: (1) ‘the absolute supremacy or predominance of regular law as opposed’, with the fundamental consequence that an individual may ‘be punished for a breach of law, but he can be punished for nothing else’;8 (2) ‘equality before the law’;9 and (3) the law of the Constitution is ‘not the source, but the consequence of the rights of individuals, as defined and enforced by the Courts’.10 The notion of rule of law was therefore issued with specific reference to the British legal system and its political and legal culture. However, the need to eliminate arbitrariness in the exercise of public powers and to ensure fundamental rights of freedom were felt almost everywhere in Europe. This spread particular interest and attention towards the British legal culture which, further to the Glorious Revolution of 1689, definitively acquired the principles of liberalism and progressive democratic development as an indispensable reference of its political-juridical system. The expression ‘rule of law’ became general during the nineteenth century and was adopted in various European languages through specific formulations that represented a more or less faithful translation of that principle, although based on different legal conceptions. In particular, the German expression Rechtsstaat – issued in the 1830s by Robert von Mohl (1799–1875)11 and developed by Georg Jellinek (1851–1911), Otto Mayer (1846–1924) and Rudolf von Jhering (1818–92) – appears significantly different from the British one.12 Through the principle of rule of law, it is intended to guarantee rights and freedoms already existing in the society and duly protected by customary customs and common law against any arbitrary acts by the state. Differently, with reference to the culture of Rechtsstaat, the state adopts an act of ‘self-limitation’, whereby it spontaneously reduces its powers and accepts being subject to control of legality by the jurisdiction. In other words, while under the British system the state is created in compliance with law, according to the German perspective the right is created by the state and it The Stanford Encyclopedia of Philosophy (Spring 2020 Edition), (https://plato.stanford.edu/entries/ruleof-law/). For the Italian bibliography, see G Pino and V Villa (eds), Rule of Law. L’ideale della legalità (Il Mulino, 2016). 7 Before Dicey – and it is the same author who affirms this – William Edward Hearn (1826–88) used the expression ‘rule of law’ in the volume The government of England. Its structure and its development (Longmans, 1867). 8 AV Dicey, Introduction to the Study of The Law of the Constitution (1885), 8th edn (Macmillan, 1915) 120. The rule of law ‘excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of the government’, ibid. 9 ‘The rule of law in this sense excludes the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens or from the jurisdiction of the ordinary Tribunals’, ibid. 10 Dicey (n 8) 121. 11 According to the work of 1832 Die Polizeiwissenschaft nach den Grundsätzen des Rechtsstaates (The police science according to the principles of the constitutional state). 12 G Gozzi, ‘Rechtsstaat and individual rights in german constitutional history’ in P Costa and D Zolo (eds), The Rule of Law: History, Theory and Criticism (Springer, 2007) 237–59; O Jouanjan, Figures de l’État de droit: le Rechtsstaat dans l’histoire intellectuelle et constitutionnelle de l’Allemagne (Presses universitaires de Strasbourg, 2001).

14  Paolo Alvazzi del Frate and Alberto Torini does not pre-exist to it. This is why, as it is properly observed by Giuliano Amato, in the European ideological system, ‘the English one is the most liberal of liberalisms’.13 The French version of the État de droit emphasises even more the role of the state and of the law, as ‘expression of the general will’, as stated in article 6 of the Declaration of the Rights of Man and of the Citizen 1789.14 According to the French perspective, the regulatory monopoly by the state law is affirmed and jurisdiction plays a secondary role, limited to mere application of the legislative rules and therefore of the will of the legislator.15 Also, considering the variety of political-juridical conceptions, the rule of law principle was firmly established as a characteristic and fundamental feature of western juridical culture. Indeed, this does not imply an underestimation of the very serious crisis experienced in the twentieth century with the spread of European totalitarianisms (fascism, nazism and communism). However, despite this (which – from a historical point of view – we can consider an, albeit long, parenthesis) the rule of law remains a value to be achieved, a tendential principle to which the western legal systems aspire. II.  THE EIGHTEENTH CENTURY: THE HISTORICAL CONTEXT

The development of absolute states in the sixteenth and seventeenth centuries had caused a progressive centralisation of power in Europe, against the role and functions of the traditional representative and jurisdictional bodies of the medieval tradition. We mainly refer to the crisis of the General Estates (États généraux) and the Parliaments (Parlements) in France, but absolutist attempts also occurred – as known – in the UK and culminated in the seventeenth century Revolutions, although to a lesser extent, Spain, Portugal, the Italian and German states and the Empire also experienced similar phenomenon.16 The main powers available to absolute sovereigns inevitably reduced the role of the classes and bodies that traditionally limited and controlled the action of European governments. While medieval systems guaranteed a certain stability and continuity of policies, since they were founded on iurisdictio and on the guarantee of the status quo, during the modern age this balance disappeared, favouring more incisive reform interventions and more radical changes to the consolidated structures. After a first phase of ‘empirical absolutism’ (in the sixteenth and seventeenth centuries), largely unaware of government action, a phase of ‘enlightened absolutism’ took over in continental Europe in the eighteenth century (also called Polizeistaat in German, Police state in English, État de police in French). Absolutism therefore initiated a broad policy of economic and social reforms and the strengthening of the state, inspired by the Enlightenment doctrines.



13 G

Amato, Forme di Stato e forme di governo (Il Mulino, 2006) 44. ‘Law is the expression of the general will’. 15 See Chevallier (n 3) 22–43. 16 See P Anderson, Lineages of the Absolutist State (NLB, 1974). 14 Article 6,

Rule of Law between the Seventeenth and Nineteenth Centuries  15 In the eighteenth century the development of the functions of the states and of the powers available to the rulers had significant consequences from a political and legal point of view. Public power found itself in the position to act through higher intensity and efficacy towards the social and economic reality, reducing and, in some cases, eliminating the role of traditional ‘intermediate bodies’. The articulated legal systems of the Ancien Régime experienced a significant phenomenon of simplification and reduction of social articulations. Therefore, the traditional limits to the powers of the sovereign gradually faded, allowing a more incisive reform action. Such evolution characterised the territories of the Empire (with the sovereigns Maria Theresa, Joseph II and Leopold II), Prussia (with Frederick II) and, to a lesser extent, France and Spain. The UK, after the Glorious Revolution and the Bill of Rights of 1689, had a different route characterised by a greater institutional continuity and stability, which allowed it to carry out important and gradual reforms without changing the substantial respect for its historical tradition, typical of that culture. The complex and heterogeneous situation of the Italian states was largely extraneous to this phenomenon of simplification, with the exception of the territories belonging to the Austrian Empire (Lombardia and Veneto regions) or in any case under its influence such as the Grand Duchy of Tuscany (with Pietro Leopoldo). During the eighteenth century, Europe therefore appears as a reality in transformation, where the aspiration for a profound reform under the banner of simplification and rationalisation of the legal systems is strongly felt and promoted by the doctrines of the Enlightenment. Not to be overlooked, however, is the importance of the tradition which still exercises a significant cultural and social influence. In the last decades of the century, the two great revolutions, in America and France, marked a significant fracture and the definitive crisis of the model of the enlightened absolutism. Afterwards, it was no longer possible to re-introduce the idea of a paternalistic and enlightened power, although still absolute, capable of leading a route of radical reforms, completely excluding the population from public life. III.  AGAINST THE REASON OF STATE (RAGION DI STATO)17

The rule of law, based on superior and binding legal rules applicable to everyone, was first opposed to the Reason of State which, on the contrary, theorised the total freedom of political action. The rule of law principle was elaborated in British culture and practice, while in continental Europe, in particular in Italy and France, the Reason of State was affirmed (in Italian Ragion di Stato, in French Raison d’État). According to the doctrine of the Reason of State, whose theorisation is mainly due to the Italians Niccolò Machiavelli (1469–1527) and Francesco Guicciardini (1483–1540) – the sovereign had to be considered free from any legal and moral 17 Hereinafter, through the expression ‘Reason of State’ we refer to the translation of the Italian concept of ‘Ragion di Stato’.

16  Paolo Alvazzi del Frate and Alberto Torini constraint as he represented the only authority capable of understanding and pursuing the ‘common good’ (bonum commune), intended as the interest of the collectivity.18 This theory necessarily moved from the clear separation between morality and politics, through a complete autonomy in favour of the latter. The figure that historically interpreted in full this autonomy and in a very symbolic way was certainly Cardinal Richelieu (1585–1642), minister of Louis XIII, king of France. From a long-term perspective, it can be argued that the rule of law intended to reconcile politics and law with the transparency of documents and the moral evaluation of the action of public authorities. IV.  LIMITING ABSOLUTE POWER

Is it possible to introduce legal limits to the sovereign’s power? This is the fundamental question that jurists and philosophers seemed to ask themselves in the seventeenth century and, even more, in the eighteenth century. During the Middle Ages, power appeared naturally limited by the generalised acknowledgment of universal authorities, the Pope and the Emperor, and by the adoption of the so-called common rights (iura communia) by Roman and canon law. Differently, in the modern age, the crushing of the traditional political scheme led to the emergence of almost absolute powers (from the Latin legibus soluti) which recognised no authority above them (auctoritas superiorem non recognoscens), disavowing the idea of ‘limitation of power’. In this regard, the maxim of the French law of the Ancien Régime is significant, stating that ‘what the king wants, the law wants’ (Qui veut le roi, si veut la loi)’.19 The authority of the king was therefore identified with that of the law. Absolutism – the political and legal doctrine prevalent in the modern age – claimed the full freedom of sovereign power and the overcoming of the bonds that medieval tradition had established. This does not mean that the states of the modern age reach the absoluteness of monarchical power. Instead, it was a ‘tendential’ phenomenon, a doctrine and a sort of programme to be implemented. Among the greatest theorists of absolutism, we remember the French Jean Bodin (1529–96) and the English Thomas Hobbes (1588–1679). The affirmation of absolute and unrestrained power led jurists and philosophers to theorise, by reaction, the need to establish effective limits to that power. The genesis of political liberalism and the rule of law doctrine therefore arise from the need to legally limit absolutism and also to subject sovereign power to compliance with legal rules. In technical terms, this meant establishing the hierarchical superiority of one legal source over the other and, in particular, of the ‘Constitution’ with respect to the legislative act of the king. Consequently, a legislative act contrary to the Constitution (higher than it) would have been void and therefore null.

18 See M Senellart, Machiavélisme et raison d’état (PUF, 1989). 19 A Loysel, Institutes coustumières: ou manuel de plusieurs et diverses reigles, sentences, et proverbes tant anciens que modernes du droict coustumier et plus ordinaire de la France (Abel L’Angelier,1607) 1, tit. 1.

Rule of Law between the Seventeenth and Nineteenth Centuries  17 V.  THE FIRST STATEMENT: THE ENGLISH CONSTITUTIONAL MONARCHY AND THE DOCTRINE OF JOHN LOCKE

Which were the fundamental milestones in the concrete affirmation of the rule of law? Without any doubt, the first milestone can be found in the conclusion of the troubled period of the English revolutions, from the Petition of Right 1628, to the Habeas Corpus Act 1679 and to the Bill of Rights 1689. The result was the stable affirmation of the principle – already proclaimed in the Middle Ages with the Magna Carta Libertatum of 1215 – according to which every public authority is subject to respect for fundamental law, that is the British Constitution. The latter represents a higher law towards the royal will (or Royal Act) and also towards the legislation (or Parliamentary Acts). After the previous theorisations of Edward Coke (1552–1634), Samuel Rutherford (1600–61) and James Harrington (1611–77), the cornerstone in the evolution of the principle is undoubtedly the doctrine of John Locke (1632–1704). It was the founder of the liberal doctrine and was deemed as the constant reference of every reflection on the rule of law, Locke firmly anchors his doctrine to the principle of Liberty and Property according to which there is an inseparable link between the freedom of individuals and the protection of private property. Locke’s doctrine affirmed the need for humankind ‘to be under no other restraint but the law of nature’: freedom of men under government is, to have a standing rule to live by, common to every one of that society, and made by the legislative power erected in it; a liberty to follow my own will in all things, where the rule prescribes not; and not to be subject to the inconstant, uncertain, unknown, arbitrary will of another man: as freedom of nature is, to be under no other restraint but the law of nature.20

According to Locke, the higher law was thus identified with ‘natural law’, superior to men and their laws.21 There was therefore a double level of legality: one with respect to the legislation created by men and another with respect to natural law. With Locke’s doctrine and the system of the constitutional monarchy, the modern conception of the rule of law was inaugurated, which gradually spread throughout Europe in the eighteenth century. VI.  MONTESQUIEU: LIBERTY AND SEPARATION OF POWERS

Montesquieu (1689–1755) – as known – continued and developed principles partially already enunciated by Locke: we make reference to ‘liberty and property’ and the rule of law. As Locke, he identifies the ‘separation of powers’ as the most suitable principle to guarantee liberty and supremacy of the law.22 The concentration of legislative, 20 J Locke, Second Treatise of Civil Government, Ch IV, s 22 (1690). 21 See F von Hayek, The Constitution of Liberty (University of Press, 1960) Ch XI, 170–75. 22 See the classic book of E Carcassonne, Montesquieu et le problème de la constitution française au XVIIIe siècle (Puf, 1927); JN Shklar, Montesquieu (OUP, 1987); and ThL Pangle, Montesquieu’s Philosophy of Liberalism: A Commentary on the Spirit of the Laws (Chicago University Press, 1989).

18  Paolo Alvazzi del Frate and Alberto Torini executive and judicial powers provides a single body with excessive influence and inevitably causes tyranny.23 This is Montesquieu’s famous conclusion: there would be an end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.24

A particular function was attributed by Montesquieu to the judiciary power, capable of ensuring compliance with the law maintaining at the same time a ‘neutral’ or even ‘null’ role.25 In this respect he affirmed that judges ‘are no more than the mouth that pronounces the words of the law, mere passive beings, incapable of moderating either its force or rigour’.26 Montesquieu’s doctrine was based on the interpretation of the British system. This was certainly a schematic reading, exaggerated and unrealistic, but logical and coherent in its formulation. The influence of Montesquieu’s doctrine was of significant importance.27 Although Locke defined the fundamental characteristics of the rule of law and inaugurated the doctrines of political liberalism, Montesquieu clarified and rendered universal the theory of the separation of powers. Such a theory, it is perhaps useless to remember, is still in force today and represents the basis of the principle of rule of law. VII.  THE AMERICAN REVOLUTION

The American Revolution certainly represented a fundamental step in the evolution of the principle. Born in British culture and legislation, the rule of law has perfected and defined itself with specific features in North American constitutionalism. These revolutionary events can be considered, from a certain perspective, as an act of loyalty to the British Constitution. In the name of the rule of law, American revolutionaries rebelled against the homeland that they believed guilty of repeated violations of constitutional rules. In particular, such revolutionaries claimed the right to be regularly consulted in tax matters through an explicit and formal representation in the Parliament of London. Such approach was based on the well-known principle of ‘no taxation

23 ‘When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner. Again, there is no liberty, if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be subject to arbitrary control; for the judge would then be legislator. Were it joined to the executive power, the judge might behave with violence and oppression’, Montesquieu, ‘Spirits of Laws (1748)’, XI/6, in The Complete Works of M. de Montesquieu (London 1777) I, 199. 24 ibid. 25 ‘Of the three powers abovementioned, the judiciary is, in some measure, next to nothing’, ibid 204. 26 ibid 208. 27 ‘His formulation of the separation of powers, the emphasis he placed on the judiciary as the preserve of the rule of law, his statement of legal liberty, and his insight that there is a complementary connection between the surrounding culture and the law, are of enduring moment’ Tamanaha (n 6) 53.

Rule of Law between the Seventeenth and Nineteenth Centuries  19 without representation’ whose origins may even be traced back to Chapter 12 of the Magna Carta Libertatum28 in 1215.29 What were the violations attributed to the Government of King George III? American settlers believed that the imposition of taxes on settlers themselves was illegitimate because it was not discussed, nor approved by taxpayers but unilaterally decided by the Parliament of London where deputies representing them did not sit. Therefore, if taxation according to the English Constitution was necessarily based on the approval of taxpayers, taxes such as the Stamp Act 1765 were to be consequently considered illegitimate. This is why the origin of the American Revolution, based on loyalty to British constitutional principles, is believed to represent a claim to the rule of law theorised by British legal and political culture. In reality, rather than a real revolution, the American one brought a reaffirmation of British constitutional principles. Certainly, the innovative aspects of American constitutionalism should not be overlooked. First and most significant, we recall the convening of ‘constitutional conventions’ such as the Philadelphia Convention of 1787, charged with drafting the Constitution of the USA. The convening of a constituent assembly did not appear in the eyes of American settlers as a violation of legality but as a reaffirmation of it. If, as stated in the Declaration of Independence of 1776, ‘a long train of abuses and usurpations … evinces a design to reduce them under absolute despotism’ it becomes necessary to ‘throw off such Government, and to provide new Guards for their future security’. Therefore, once again, the rule of law would have forced Americans to act to restore the legality violated by the despotic Government. Independence and the new Constitution would have established a new legality and a new Government. In the publications of the revolutionary age, it is essential to remember the famous The Federalist by Alexander Hamilton (1755–1804), James Madison (1751–1836) and John Jay (1745–1829). The objective of The Federalist’s writings was certainly to guarantee respect for citizens’ rights of freedom, thanks to the adoption of the federal Constitution. More specifically, Alexander Hamilton recalled the principles of the rule of law and stated that the Constitution was aimed ‘to secure the public good and private rights against the danger’ of the oppression of the majority ‘and at the same time to preserve the spirit and form of popular government’.30 The concern for the protection of minorities was evident, a protection which was at the same time to be reconciled with respect for the democratic principle of majority rule.

28 Chapter 12: ‘Nullum scutagium vel auxilium ponatur in regno nostro, nisi per commune consilium regni nostri, nisi ad corpus nostrum redimendum, et primogenitum filium nostrum militem faciendum, et ad filiam nostram primogenitam semel maritandam, et ad hec non fiat nisi racionabile auxilium; simili modo fiat de auxiliis de civitate London’ (No scutage nor aid shall be imposed in our kingdom, unless by the common council of our kingdom; excepting to redeem our person, to make our eldest son a knight, and, once, to marry our eldest daughter, and not for these, unless a reasonable aid shall be demanded). 29 As it was observed, ‘Magna Carta symbolized the fact that law protected citizens against the king’, Tamanaha (n 6) 26. 30 J Madison, A Hamilton and J Jay, The Federalist Papers (Liberty Fund, 2001) n 10, 45.

20  Paolo Alvazzi del Frate and Alberto Torini In order to guarantee pluralism, The Federalist identified – as observed by Brian Tamanaha31 – three fundamental principles: (1) representative democracy, considered an effective antidote to the populist tendencies of direct democracy; (2) the separation of powers that would act not only between federal powers (legislative, executive and judicial) but between state power and federal power; (3) finally, the judicial review of legislation considered as the fundamental guarantee for the correct functioning of the entire system. In this perspective, the task of the judges becomes ‘to declare all acts contrary to the manifest tenor of the Constitution void’.32 Already in The Federalist there were principles that efficiently summarise the contribution of American constitutionalism in the evolution of the rule of law: ‘a written constitution, democratic elections, explicitly articulated individual rights, the separation of powers, and judicial review of legislation’.33 This is because it is necessary to ensure ‘the government of laws, and not of men’.34 The following evolution of the principle in American legal culture was based on the reinterpretation and enrichment of new meanings of the constitutional provisions by the case law of the Supreme Court. This is, in particular, in relation to the principle of equality. VIII.  THE ‘MANIFESTO’ OF THE RULE OF LAW: THE FRENCH DECLARATION OF RIGHTS OF 1789

The French Revolution of 1789 represented the consecration and universalisation of the rule of law principle. The Declaration of the Rights of Man and of the Citizen of 26 August 1789 represented the real and proper ‘manifesto’ of the rule of law. This Declaration widely inspired the 1948 United Nations Universal Declaration of Human Rights. Differently from the federal Constitution of the US and other North American legal texts of the time, whereby the contingent character and the specific and historical vindication were predominant, the French Declaration was addressed to all humanity in order to establish permanent and immutable principles and rules, based on natural law. It was therefore a text inspired by a universalistic aim. This explains the success, spread and longevity of the French Declaration. From the first articles of the French Declaration the solemnity and universality of the words of the French ruler are clear: ‘men are born and remain free and equal in rights’ (article 1), ‘the goal of any political association is the conservation of the natural and imprescriptible rights of man. These rights are liberty, property, safety and resistance against oppression’ (article 2). 31 Tamanaha (n 6) 54–55. 32 ‘Without this, all the reservations of particular rights or privileges would amount to nothing’, The Federalist, n 78, 403. 33 Tamanaha (n 6) 55. 34 As affirmed by John Marshall on the basis of a definition by John Adams in order to sustain the need for the judicial review of legislation: ‘the government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right’: J Marshall, Marbury v Madison, 1 Cranch 137, 163 (1 February 1803).

Rule of Law between the Seventeenth and Nineteenth Centuries  21 The definition of liberty is very well known: ‘liberty consists of doing anything which does not harm others: thus, the exercise of the natural rights of each man has only those borders which assure other members of the society the fruition of these same rights’ (article 4). The role of the law is strictly connected with liberty and represents the guarantee for the benefit of liberty itself. The law, which ‘has the right to forbid only actions harmful to society. Anything which is not forbidden by the law cannot be impeded, and no one can be constrained to do what it does not order’ (article 5) is defined according to article 6: The law is the expression of the general will. All the citizens have the right of contributing personally or through their representatives to its formation. It must be the same for all, either that it protects, or that it punishes. All the citizens, being equal in its eyes, are equally admissible to all public dignities, places, and employments, according to their capacity and without distinction other than that of their virtues and of their talents.

Deep within the rule of law, according to the liberal perspective that shares the French Revolution with the Anglo-American legal culture, the relationship between liberty, law and private property can be found. Therefore, individuals cannot be deprived of their liberty and property except according to a provision of law: ‘No man can be accused, arrested nor detained but in the cases determined by the law, and according to the forms which it has prescribed’ (article 7). Under criminal law perspective, the law should ‘establish only penalties that are strictly and evidently necessary, and no one can be punished but under a law established and promulgated before the offense and legally applied’ (article 8). Based on the presumption of innocence, any kind of mistreatment towards prisoners was strictly prohibited: ‘any man being presumed innocent until he is declared culpable if it is judged indispensable to arrest him, any rigor which would not be necessary for the securing of his person must be severely reprimanded by the law’ (article 9). Freedom of speech and religion were granted: ‘No one may be disquieted for his opinions, even religious ones, provided that their manifestation does not trouble the public order established by the law’ (article 10). Also freedom of press was guaranteed: ‘the free communication of thoughts and of opinions is one of the most precious rights of man: any citizen thus may speak, write, print freely, except to respond to the abuse of this liberty, in the cases determined by the law’ (article 11). Private property, defined as ‘an inviolable and sacred right’, shall not be violated except according to a provision of law and upon payment of a proper indemnity: ‘no one can be deprived of private usage, if it is not when the public necessity, legally noted, evidently requires it, and under the condition of a just and prior indemnity’ (article 17). The rule of law according to the French Declaration of 1789 becomes synonymous with legality and constitutionalism. In this respect, article 16 provides the most important enunciation stating ‘any society in which the guarantee of rights is not assured, nor the separation of powers determined, has no Constitution’. Therefore, while according to the American version of the rule of law the protection of citizens’ liberty is mainly entrusted to the jurisdiction and, first of all, to the Supreme Court due to the judicial review of legislation, in the French one,

22  Paolo Alvazzi del Frate and Alberto Torini Constitution and law identify themselves with liberty and represent the fundamental guarantee of freedom. In the French perspective, the judge is entrusted with a secondary role, of mere ‘syllogistic’ application of the law, based on Montesquieu’s view of the judge as the bouche de la loi. At the same time, the ruler emerges as an omnipotent and infallible legislator, since he is the position to interpret the general will (volonté générale). As stated by Jean-Jacques Rousseau, ‘the general will is always right and tends to the public advantage’.35 IX.  THE CRISIS OF THE RULE OF LAW

In the first half of the twentieth century, due to the spread of political liberalism, the rule of law became increasingly widespread. This can be linked to the theorisation of the Rechtsstaat in Germany and the État de droit in France that took place in those years. It was a phenomenon of self-limitation of the state, whereby the functioning of public powers and relationships between citizens and public bodies were also governed by law, excluding any form of arbitrariness. Such an approach represented the model for the modernisation of European legal systems. It should be remembered that the rule of law was based on the formal affirmation of rights and liberties and it was in line with the individualistic and liberal needs that were predominant in this period. With the spread of anti-individualist socialist and Catholic movements in the second half of the nineteenth century, the lack of ‘negative liberties’, intended as liberties granted to the individuals against the potential interference of public authorities, began to be highlighted. How could a merely formal model that did not affect the substance of the existing inequalities guarantee the effectiveness of the rights of freedom? The contrast with an abstract model spread and the liberal conceptions was criticised by conservative doctrines and by socialist and revolutionary thought. The request for ‘negative liberties’ – as defined by Isaiah Berlin in the 1950s – was forcefully asserted.36 Such freedoms were based on the concrete participation of citizens in the life of the society and aimed at the full realisation of themselves.37

35 J-J Rousseau, The Social Contract (1762) II/3. As the French jurist Raimond Carré de Malberg (1861–1935) well noted, the law in the US does not have the same strength as the French one because it is not invested with that sacredness that it has in France, precisely because it does not represent the expression of the general will. In the US, only the Constitution is considered as work of the general will, while the ordinary laws ‘are not the result of the work of the people, but a creation of the legislature, that is, the work of a simply constituted authority that exercises its competence by virtue of a delegation made by the people in the constitution’, R Carré de Malberg, La loi expression de la volonté générale (Economica, 1931) 109. 36 I Berlin, ‘Two Concepts of Liberty’ (1958) in Four Essays On Liberty (OUP, 1969) 118–72. 37 As affirmed by Berlin, ‘the positive sense of the word “liberty” derives from the wish on the part of the individual to be his own master’, Berlin, ibid 131.

Rule of Law between the Seventeenth and Nineteenth Centuries  23 With the occurrence of the twentieth century and the advent of totalitarianisms, the pure liberal model ended, although the subsequent political and juridical evolution was still unknown. X. EPILOGUE

The totalitarianisms of the twentieth century and the catastrophes of World War II imposed a general reflection and rethinking on legal systems and guarantees of fundamental freedoms. The purely formalistic approach, suggested by the continental models of the Rechtsstaat and the État de droit, had proved to be dramatically useless. In that paradoxical perspective, even a totalitarian system (like Fascism or Nazism) would appear to be compliant to a Rechtsstaat, since it respected the legal rules that it had given itself. It appeared necessary to introduce new limits to the legislator and new international guarantees. Therefore, in the face of the post-war rubble, the foundations of a new approach to the rule of law and the protection of freedoms were laid with the Universal Declaration of Human Rights of 1948. The history of the rule of law took a new and unknown path.

24

3 Rule of Law Metamorphoses in the Twentieth Century LUIGI LACCHÈ*

I.  HISTORY AND/OF RULE OF LAW

T

he twentieth century has been without a doubt a large and conflict-ridden stage on which to ‘represent’ issues, changes, challenges and new horizons of rule of law. The complexity and vastness of this panorama makes it impossible even to think of providing a comprehensive overview. I therefore cannot hope to do more than simply outline a number of key ‘moments’. In particular, I would like to highlight three major ‘phases’. I mean first of all the ‘setting’ of rule of law ‘models’ during the first decades of the twentieth century, then the experiences, in some countries, of the authoritarian/totalitarian regimes regarding the rule of law tradition, and finally the fashioning of our current conceptualisation of rule of law after World War II, interwoven as it has been with two main phenomena: the democratic/welfare state1 and the Constitutional state.2 A preliminary consideration has to do with the semantic complexity3 of the concepts, forms and rhetorics of the rule of law. Over time they have been marked by important transformations, but the coexistence and the tension between old and new meanings has certainly played an important role. Current politico-legal theory tends to emphasise the conceptual equivalences of the main historical paths (English and American Rule of Law, German Rechtsstaat, French État de droit, Italian Stato di diritto and so on), the aim being to consolidate a controversial ‘common’ core of principles, legal and political institutions. The English formula rule of Law – depending also on the dominant use of English language on a global scale – inevitably tends to level different historical and conceptual paths, thereby giving the impression that this category is genetically compact. Convergence of principles and linguistic * University of Macerata. 1 See for a general overview FG Castles et al (eds), The Oxford Handbook of the Welfare State (OUP, 2012) and B Greve (ed), The Routledge Handbook of the Welfare State (Routledge, 2013). 2 See NW Barber, The Constitutional State (OUP, 2010). 3 On this aspect see P Costa and D Zolo, ‘Preface’ in P Costa and D Zolo (eds), The Rule of Law: History, Theory, and Criticism (Springer, 2007) Part IX.

26  Luigi Lacchè standardisation help to give rise to this effect. If we are to fully grasp the complexity of the category it is important to be aware of the wider background. This approach will impart greater depth to the concept, but also enable us to better address current readings of the notion of rule of law, bringing out differences, tensions and even outright rejections. The universalisation of the rule of law4 (based on the European/American matrix) has to deal with new perspectives – connected to other legal systems and regions in the world5 – that tend to relativise the original sources, while acknowledging the existence of a common core (incorporating a series of principles and rights) and many ‘local’ variations. Substantive and formal approaches to rule of law, non-derogable or derogable rights are highly controversial matters.6 The profound importance of the political ideal of the rule of law (a sort of compendium and the logo, perhaps, of an entire politico-constitutional civilisation) is perhaps matched by the sheer difficulty of saying precisely what it means and how it works. A historical approach can offer some useful insights and, indeed, help us to avoid a decontextualised perception.7 In this sense, not only is there a fundamental gap between formal and substantive concepts but there is an equally important heuristic difference between the history and the theory of rule of law. II.  RULE OF LAW IN THE TWENTIETH CENTURY: A COMPLEX AND POLYSEMIC LEGACY

In 1921 the distinguished scholar and politician James Bryce, in his Modern Democracies, underlined the global tendency, in spite of concomitant problems and threats, to spread democracy, free government and rule of law. The end of World War I, with the victory of ‘democracy’ over autocratic regimes and the new liberaldemocratic constitutions approved after 1919, bore witness to the growing success of the ‘rule of law’ discourse. ‘We see backward populations, to which the very conception of political freedom had been unknown, summoned to attempt the tremendous task of creating self-governing institutions. China, India, and Russia contain, taken together, one half or more the population of the globe, so the problem of providing free government for them is the largest problem statesmanship has 4 C May, The Rule of Law: The Common Sense of Global Politics (Edward Elgar Publishers, 2014). 5 See R Gosalbo-Bono, ‘The significance of the rule of law and its implications for the European Union and the United States’ (2010) 72 University of Pittsburgh Law Review 280. 6 See eg BZ Tamanaha, ‘The Rule of Law for Everyone?’ (2002) 55 Current Legal Problems 97; R Peerenboom, ‘Varieties of Rule of Law: An Introduction and Provisional Conclusion’ in R Peerenboom (ed), Asian Discourses of Rule of Law: Theories and Implementation of Law in Twelve Asian Countries, France and the U.S. (Routledge Curzon, 2004) 1; R Kleinfeld, ‘Competing Definitions of the Rule of Law’ in T Carothers (ed), Promoting the Rule of Law Abroad: In Search of Knowledge (Carnagie Endowment for International Peace, 2006); G Palombella and N Walker (eds), Relocating the Rule of Law (Hart Publishing, 2009); M Ellis, ‘Toward a common ground definition of the rule of law incorporating substantive principles of justice’ (2010) 72 University of Pittsburgh Law Review 191–215; A Bedner, ‘An Elementary Approach to the Rule of Law’ (2010) 2 Hague Journal on the Rule of Law 48–74, see https://core.ac.uk/download/ pdf/15605763.pdf; Costa and Zolo (n 3) Parts IV, V and VI; C May and A Winchester (eds), Handbook on the Rule of Law (Edward Edgar Publishing, 2018) Part I Defining the rule of law. 7 For some methodological aspects see BZ Tamanaha, On the Rule of Law: History, Politics, Theory (CUP, 2004); P Costa, ‘The Rule of Law: An Historical Introduction’ in Costa and Zolo (n 3) 73.

Rule of Law Metamorphoses in the Twentieth Century  27 ever had to solve’.8 New hopes were on the horizon. Bryce was right to identify this trend, within precisely that historical conjuncture. After World War I the rule of law seemed to extend its range. Yet shortly afterwards, between the 1920s and the 1930s, things changed with the rapid emergence of a number of different political regimes (URSS, Italy, Portugal, Austria, Hungary, Germany, Spain) which departed in various ways from the rule of law. James Bryce – a colleague and a friend of Dicey – probably had in mind the evidence relating to British rule of law. At the beginning of the twentieth century rule of law served to identify a series of principles and institutions closely related to the history of modern constitutionalism. For a long time – one might say – such a ‘thing’ did indeed exist in British historical experience (‘the law of the land’, ‘the rule of common law’, ‘government limited by law’) but the category took on its current ‘dimensions’ in the second half of the nineteenth century, when this historicoconstitutional experience better found in Albert Venn Dicey9 the Victorian legal theorist – influenced by the Irish professor and politician William Edward Hearn – the main architect of the formula rule of law ‘canonised’ in his highly successful book Introduction to the Study of the Law of the Constitution, published for the first time in 1885 and then amended and expanded in several later editions. Alexis De Tocqueville had found it hard to know quite how to describe the ‘real significance of the “Rule, supremacy, or predominance of law” as “one of the most marked peculiarities of English life”’.10 So, according to Dicey, it was therefore a pressing matter to ‘determine precisely what we mean by such expressions when we apply them to the British constitution’. Rule of law – as a characteristic of the English Constitution – encompassed at least ‘three distinct though kindred conceptions’.11 Dicey observes that this expression is first of all contrary to arbitrary power, to the effect that ‘no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary Courts of the land’;12 secondly, that ‘every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals’;13 finally, the third meaning concerns the fact ‘that the constitution is pervaded by the rule of law on the ground that the general principles of the constitution (as for example the right to personal liberty, or the right of public meeting), are with us the result of judicial decisions determining the rights of private persons in particular cases brought before the Courts’.14 8 J Bryce, Modern Democracies (The McMillan Company, 1921) I, see https://oll.libertyfund.org/titles/ 2084#Bryce_1427-01_70. 9 See HW Arndt, ‘The Origins of Dicey’s Concept of the “Rule of Law”’ (1957) 31 Australian Law Journal 117–23; RA Cosgrove, The Rule of Law: Albert Venn Dicey Victorian Jurist (The University of North Carolina Press, 1980) 66; BJ Hibbitts, ‘The Politics of Principle: Albert Venn Dicey and the Rule of Law’ (1994) 23 Anglo-American Law Review 1; Costa and Zolo (n 3); E Santoro, ‘The Rule of Law and the “Liberties of the English”: The Interpretation of Albert Venn Dicey’ in Costa and Zolo (n 3) 73; JWF Allison, ‘Turning the rule of law into an English constitutional idea’ in May and Winchester (n 6) 167. 10 AV Dicey, Lectures Introductory to the Study of the Law of the Constitution (The Oxford Edition of Dicey, I, JWF Allison (ed)) (OUP, 2013) 97 (187 10th edn). 11 ibid 97 (188 10th edn). 12 ibid. 13 ibid 100 (193 10th edn). 14 ibid 115 (196 10th edn).

28  Luigi Lacchè Dicey – if we follow the evolution of his thought and of the various editions of The Law of the Constitution – had already recognised, as early as 1885, ‘that in most European countries the rule of law is now nearly as well established as in England’15 but nevertheless there is ‘something’ that foreign observers – even those as acute as the viscount De Tocqueville – could not altogether grasp. The English Constitution’s rule of law was ‘different’, Dicey insisted, and for several reasons, but crucially perhaps because ‘there runs through the English constitution that inseparable connection between the means of enforcing a right, and the right to be enforced which is the strength of judicial legislation’.16 In England – in marked contrast to other ­countries – constitutional rules ‘are not the source but the consequence of the rights of individuals, as defined and enforced by the Courts … thus the constitution is the result of the ordinary law of the land’.17 Dicey’s quarrel with French droit administratif underpinned his sense of the cardinal differences between the English and the continental understanding of ‘rule of law’.18 The English Constitution rests on two pillars: the sovereignty of Parliament and the rule of law. They together withstood each and every attempt to assert arbitrary executive power. The political supremacy of the King in Parliament and rule of law ensured the balanced development of the British Constitution. Dicey had little or no confidence in ‘abstract’ written and rigid Constitutions. For him it was an ‘easy’ matter to declare solemnly rights and freedoms but this did not guarantee their efficacy in the concrete life of peoples, ‘preferring [as he did] to rely on the slow, incremental process of common law decision-making, judge by judge, case by case’.19 According to this vision, the notable characteristic of the American ‘variant’ of rule of law ought properly to be regarded as its ‘osmosis’ with the judiciary and judge-made-law. Judges were there as the guardians of the written Constitution, thanks first to the invention and then the implementation of the judicial review of legislation. Despite such differences, the culture of judicial protection was a dominant factor shared on both sides of the Atlantic. Judicial interpretation and legal culture placed the principle of legality within a common framework and helped to maintain a considerable distance from the Rechtsstaat tradition. At the beginning of the twentieth century this distinction was still full of meaning. Indeed, I believe that a common core of liberal-constitutional principles is not sufficient to establish an overlap between rule of law and the Rechtsstaat. The differences are substantial and have considerable consequences.20 Subsequent developments – dating from the aftermath of World War II – cannot be invoked to establish 15 ibid 98 (189 10th edn). 16 ibid 117 (199 10th edn). 17 ibid 199 (203 10th edn). 18 On the development of Dicey’s thought regarding rule of law and droit administratif and its enduring effects see more widely S Cassese, ‘Albert Venn Dicey e il diritto amministrativo’ (1990) 19 Quaderni fiorentini per la storia del pensiero giuridico 5–82. 19 T Bingham, The Rule of Law (Allen Lane, 2010) 5. Dicey had also developed very clearly his idea of the English Constitution in the manuscript ‘[General] Characteristics of Existing English Constitutionalism’ (1897) and in the manuscript ‘Historical Constitutions and NonHistorical Constitutions’ (1900), in AV Dicey, Lectures on Comparative Constitutionalism (The Oxford Edition of Dicey, II, ed by JWF Allison) 17–28, 171–91. 20 Compare, for contemporary insights, CL Blaau, ‘The Rechtsstaat Idea Compared with the Rule of Law as a Paradigm for Protecting Rights’ (1990) 107 South African Law Journal 76–96; JY Morin, ‘The Rule of Law and the Rechtsstaat Concept: A Comparison’ in E McWhinney, J Zaslove and W Wolf

Rule of Law Metamorphoses in the Twentieth Century  29 the previous existence of a common core.21 This is one of the more important consequences of the ‘lesson’ from history. Here differences are more important than identities and similarities.22 In Germany the neologism and the autochthonous formula Rechtsstaat took shape over several decades. The liberal concept after 1848 was inserted, thanks to the extraordinary development of public law doctrine, within a framework having political ends (to establish a ‘compromise’ between constitutional liberalism and the Monarchisches Prinzip apparatus).23 In the relationship between state and law, the former became the pivot of the system. The law of the state is the principal pillar, and not the judicial courts’ interpretation/creation of law, by contrast with the UK and the US. The Rechtsstaat ‘universe’24 – state under the rule of law25 – was based, irrespective of the different variations, on the development of the state’s self-limitation theory and ‘subjective rights’. This state-centric vision was limited and supported by the law, but the protection of individual rights and freedoms was guaranteed in the main by the internal machinery of the legislative power and the administrative state (administrative jurisdiction). At the beginning of the twentieth century and at least up until the collapse of imperial Germany, the Rechtsstaat was at the same time the most impressive achievement of German legal doctrine and the representation of a special link between state and law regarded as a liberal way of achieving a balance between the power of the state and individual rights and property. The British historical idea of Constitution – more than the rule of law as such – served as a bridge with the liberal jurists of Continental Europe. In this sense there was the possibility of creating in Europe a common framework26 based on the supremacy of the ‘neutral’ state-nation law over the political supremacy of the people’s sovereignty, on constitutional balance mechanisms and on the idea of a more effective and concrete protection of rights. Rechtsstaat must be seen in connection with the evolution of the French État de droit or the Italian Stato di diritto. Any specificities that may exist do not preclude the possibility of considering these experiences within a more general interpretative model. The transformation process from the État légal to the État de droit – to summarise what was fundamentally at stake in the French debate27 – shows a broader (eds), Federalism-in-the-Making: Contemporary Canadian and German Constitutionalism, National and Transnational (Kluwer, 1992) 60–86; D Mockle, ‘L’État de droit et la théorie de la rule of law’ (1994) 35 Les cahiers du droit 4, 823–904; R Grote, ‘Rule of Law, Rechtsstaat and État de droit’ in C Starck (ed), Constitutionalism, Universalism, and Democracy (Nomos, 1999) 269; NW Barber, ‘The Rechtsstaat and the Rule of Law’ (2003) 53 University Toronto Law Journal 443. 21 In this way eg N MacCormick, ‘Der Rechtsstaat und die rule of law’ (1984) 39 Juristen Zeitung 67 and H Hofmann, ‘Geschichtlichkeit und Universalitätsanspruch des Rechtsstaats’ (1996) 65 Archiv für Rechtsund Sozialphilosophie 9. See the observations of G Gozzi, ‘Rechtsstaat and individual rights in German constitutional history’ in Costa and Zolo (n 3) 237. 22 See M Loughlin, Foundations of Public Law (OUP, 2010). 23 On this evolution see Gozzi (n 21); Costa (n 3); Gosalbo-Bono (n 5). 24 O Jouanjan (ed), Figures de l’État de droit. Le Rechtsstaat dans l’histoire intellectuelle et constitutionnelle de l’Allemagne (Presses Universitaires de Strasbourg, 2001). 25 M Stolleis, A History of Public Law in Germany 1914–1945 (OUP, 2004) 7. 26 See M Fioravanti, ‘Lo Stato di diritto come forma di Stato. Notazioni preliminari sulla tradizione europeo-continentale’ in R Gherardi and G Gozzi (eds), Saperi della borghesia e storia dei concetti fra Otto e Novecento (il Mulino, 1995) 161–77. 27 MJ Redor, De l’État légal à l’État de droit. L’evolution des conceptions de la doctrine publiciste française, 1879–1914 (Economica, 1992). For a wide comparison, see L Heuschling, État de droit, Rechtsstaat, Rule of Law (Dalloz, 2002).

30  Luigi Lacchè trend under the aegis of public law scholars – in which we find a juridical reflection on the limits to popular sovereignty, parliamentary omnipotence and the tyranny of the majority. III.  A TURNING POINT: RULE OF LAW IN THE COURSE OF THE 1920S

Rule of law during the nineteenth century mirrored a liberal vision dominated by a ‘simple’ idea: the state prevails over all that is public, the individual holds sway over property and contractual freedom. These two separated spheres saturated the whole social space. Nevertheless behind this image or facade a different reality was forming very quickly, following industrial take-off, economic changes, social challenges. While jurists were building the Rechtsstaat, societies were for their part becoming more and more complex. Social and economic associations, mutual aid companies, trade unions, working class parties began to ‘fill’ the space between state and ‘atomistic’ individuals. This pluralistic constitution of society required of the state that it provide answers and offer the first welfare solutions. Three key concepts – collectivism, solidarity, legal pluralism – allowed jurists to develop a new approach to the rule of law. World War I was an extraordinary catalyst of unanticipated issues and challenges. After the end of hostilities the germs of change, already visible between the nineteenth and twentieth centuries, became evident to all. The concept of rule of law could not be left untouched.28 The European debate on the ‘crisis’ of the modern state was one of the aspects of this challenge: how was one to manage the ‘collective’ dimension, democracy and the masses without breaking down this ‘wonderful creation of law’?29 The Bolshevik revolution of 1917 heralded new horizons, while the Weimar Constitution in 1919 was the first controversial response to the post-war reorganisation of the rule of law in a socio-centric manner. In general, Rechtsstaat was required to keep abreast of the times, through social and political reform. The 1920s represent a very important turning point both for ‘reforming’ the Rechtsstaat according to the new democratic and social constitutions and, conversely, for giving rise to the new ‘totalitarian’ idea of the state. In that same period Hans Kelsen made an important contribution to the constitutional transformation of Rechtsstaat. At the base there was the traditional relationship between state and law but legislation was now no longer the centre of the system, the ‘gold standard’ of supremacy. It was but one level, one of the procedural mechanisms in the setting up of the legal order. Kelsen’s Stufenbautheorie and the centrality of the Constitution seen as the apex of the state, the higher law, allowed for both legislative and administrative powers to be controlled by a judicial body, breaking the myth of the untouchable sovereignty of the legislative power. This reflection considered and 28 HS Jones, The French State in Question. Public Law and Political Argument in the Third Republic (CUP, 1993); C Laborde, Pluralist Thought and the State in Britain and France, 1900–25 (Palgrave Macmillan, 2000); for Germany M Stolleis, Origins of the German Welfare State Social Policy in Germany to 1945 (Springer, 2013); for Italy M Fioravanti, La costituzione democratica. Modelli e itinerari del diritto pubblico del ventesimo secolo (Giuffrè, 2018). 29 This is a famous sentence of Santi Romano in Lo Stato moderno e la sua crisi, an inaugural speech given at the University of Pisa (Tipografia Vannucchi, 1909) 8.

Rule of Law Metamorphoses in the Twentieth Century  31 served to insert into the general theory of the constitutional state the oldest problem of the continental modern state, namely, the ‘position’ of judicial power within the state organisation. ‘Mediocrity of the judge, infallibility of the law’ had been the ideal slogan of the État légal, according to the French formula, in the aftermath of the Revolution. During the nineteenth century the rule of law in continental Europe was intended to be more an État légal than a fully equipped État de droit. An Italian liberal constitutional law scholar, Attilio Brunialti, wrote in 1870 that the hallmark of Anglo-Saxon nations was precisely the rule of law. They gave the judiciary an ­extension ‘[…] which in the eyes of the continentals violated that absolute separation: it is in homage to this truth, that the Anglo-Saxon recognises this power, the only interpreter of the constitution, and the administration is subjected to the power of the courts in the same way as the lowliest citizen: the conclusion is that England and the United States made the judiciary a real political power’.30 This line of thought featured only marginally in the nineteenth century debate. The idea of the centrality and supremacy of law remained firm. Dicey’s politicoconstitutional analysis of the law of the Constitution in England based on judicial legislation and the enforcement of the courts did much to define the specificity of rule of law. The American experience of the judicial review of legislation was the new graft on to the Anglo-Saxon tree of rule of law. But these two dimensions, different though sharing one and the same legal culture, were not able between the nineteenth and the twentieth century to alter the predominant, legicentric (at times attenuated by historicity and by constitutional liberalism), vision of the European Rechtsstaat.31 A deep-rooted mistrust of the power of the judges still made itself felt despite the attempts to refine the État de droit framework, as for example in the case of Raymond Carré de Malberg, at least so far as Sollen was concerned.32 In Kelsen, judicial review is the consequence of a novel concept of constitutional Rechtstaat based on a system’s hierarchical structure. Kelsen’s theory, elaborated

30 A Brunialti, ‘La funzione politica del potere giudiziario’ (1870) V Archivio giuridico 401. cf L Lacchè, ‘Il potere giudiziario come “potere politico” in Attilio Brunialti’ in L Lacche, History & Constitution. Developments in European Constitutionalism: the comparative experience of Italy, France, Switzerland and Belgium (19th–20th centuries) (Vittorio Klostermann, 2016) 439. Tocqueville’s echo is evident: ‘So the Americans have given their courts an immense political power; but by forcing them to challenge laws only by judicial means, they have greatly diminished the dangers of this power’, Democracy in America (Liberty Fund, 2012) Vol 1, Ch 6 Of Judicial Power in the United Stated and its Action in Political Society 174. 31 For the French debate see A Laquièze, ‘Le contrôle de constitutionnalité de la loi aux Etats-Unis vu par les penseurs libéraux français du XIXème siècle’ (2002) 4 Giornale di storia costituzionale 155–71. 32 See G Bacot, Carré de Malberg et l’origine de la distinction entre souveraineté du peuple et souveraineté nationale (Edition du CNRS, 1985); Redor (n 27); O Beaud, ‘La souveraineté dans la “Contribution à la théorie générale de l’État” de Carré de Malberg’ (1994) 5 Revue du droit public et de la science politique en France et à l’étranger 1264 ff; C Schönberger, ‘De la souverainété nationale à la souveraineté du peuple. Mutations et continuité de la théorie de l’Etat de Carré de Malberg’ (1996) 4 Revue française de l’histoire des idées politiques 297–316; C Schönberger, ‘Penser l’État dans l’Empire et la République: critique et réception de la conception juridique de l’État de Laband chez Carré de Malberg’ in O Beaud and P Wachsmann (eds), La science juridique française et la science juridique allemande de 1870 à 1918, (Presses Universitaires de Strasbourg, 1997) 255–71; J Hummel, Le constitutionnalisme allemand (1815–1918): le modèle allemand de la monarchie limitée (Puf, 2002) 123–27; E Maulin, ‘Carré de Malberg et le droit constitutionnel de la Révolution française’ (2002) 328 Annales historiques de la Révolution française 5–27; P Brunet, Vouloir pour la nation. Le concept de représentation dans la théorie de l’état (L.G.D.J, 2004); A Laquièze, ‘État de droit and National Sovereignty’ in Costa and Zolo (n 3) 261.

32  Luigi Lacchè also through his experience as a prominent ‘drafter’ of the Austrian Constitution of 1920,33 made the Constitution the new sovereign and the Constitutional Court the ‘brand’ of the new figure of the state. He inserted certain pillars of the ‘traditional’ Rechtsstaat into a hierarchically structured system oriented through new concepts.34 Constitutional justice was the ‘missing piece’ serving to really render Constitution – and rule of law – wholly binding. It completed the architecture of the Rechtsstaat and at the same time it fulfilled – at least formally – a very important political purpose. If parliamentary laws were ‘constitutional’ (or otherwise) they could offer minorities concrete protection against the liberticidal attempts of the majority. ‘The specific constitutional form, which ordinarily consists in the fact that the revision of the constitution requires a reinforced majority, signifies that some fundamental issues can be resolved only with the agreement of the minority; the simple majority, at least on some matters, does not have the right to impose its will on the minority, in the sphere of guaranteed constitutional rights. Any minority – of class, religious or national – whose interests are in any way protected by the constitution has an eminent interest in the constitutionality of the laws’.35 IV.  MISUSING THE ‘RULE OF LAW’

Kelsen, during the 1920s, sowed the seeds but it would seem fair to say that in certain contexts political circumstances and economic crisis served to weaken or even arrest the foundational process of the new democratic constitutional state. Looking at the evolution of democracies, James Bryce – as I mentioned above – underlined in 1921 the possibility of taking into consideration this positive trend, but the 1920s were not destined to go down in history as the generalised and ultimate achievement of rule of law, beset as the latter was by various tensions and even threats to its very existence. In this context Italy with its Stato liberale di diritto (liberal Rechtsstaat) turned out to be an important laboratory. The Fascist movement – against the strong advance of the workers’ movement and liberal political fragmentation – affirmed the need to ‘save’ the foundations of the national state, even resorting for this purpose to intimidation and violence. In the first years – at least until Matteotti’s murder and the beginning of 1925 – many people belonging to the liberal ruling class thought that fascism could be a movement compatible with the Italian Rechtsstaat tradition. While the soviet regime, after the revolution, was seen as a radical, new form of state born after the collapse of the tsarist autocracy, the Fascist regime became a paradigm for the passage from the rule of law to a dictatorship resting on a majoritarian will. 33 Constitutional justice was his ‘maximum personal contribution’ (Hans Kelsen zum Gedenken, Schriftenreihe des Hans Kelsen lnstituts, 1 (Wien, Europaverlag, 1974) 50) to this text. The Austrian Constitutional Court, of which Kelsen was also a judge, was at the time an institution unique in Europe. cf G Schmitz, ‘The Constitutional Court of the Republic of Austria 1918–1929’ (2003) 2 Ratio Juris 240–56; G Bongiovanni, ‘The rule of law and constitutional justice in Austria. Hans Kelsen’s contribution’ in Costa and Zolo (n 3) 292; S Lagi, ‘Hans Kelsen and the Austrian Constitutional Court (1918–1929)’ (2012) 9 Revista Co-herencia 16, 273–95. 34 See Costa (n 3) 115. 35 H Kelsen, ‘La garantie jurisdictionelle de la Constitution’ (1928) XXXV Revue de droit publique et science politique 202.

Rule of Law Metamorphoses in the Twentieth Century  33 This specious argument that Fascism had won power through democratic elections – so that these latter, representing the majority of the Italian nation, might serve as a sort of bill of indemnity for the violences perpetrated – was often recalled to highlight how rule of law could be exploited to overcome the rule of law itself. Not by chance Fascism was marked by a mass militia-party of revolutionary nationalism able to achieve and keep power illegally and to abolish a number of institutions of rule of law (parliamentary democracy itself, the separation of powers, political freedoms36) but conserving ambiguously a set of relationships with certain elements of the previous and much reviled liberal state.37 The rise and affirmation of Fascism produced – according to one of the major ‘architects’ of the regime, Alfredo Rocco – the transformation of the State38 but without a formal, decisive, break with the liberal state.39 In the first decades of the twentieth century the Rechtsstaat concept was already set to change: democratic and social were becoming the new dimensions of the state facing legal pluralism and social conflicts. As regards several different aspects ‘fascist state’ and Stato di diritto found themselves coexisting – depending upon the various phases through the regime passed – in the accounts given by the great majority of scholars and in the wider public debate.40 The main strategy employed by the public law doctrine, more or less ‘integrated’ as it was into the fascist institutions, was above all else to ensure a ‘compatibility’ between the notion of Stato di diritto and the fascist state. To achieve this aim it was necessary to minimise or refuse the liberal, atomistic, dimension in terms of the separation of powers, public liberties and political pluralism. The purely formal principle of legality, and an ‘emphasis’ on the authoritarian organisation of corporatism and the ‘administrative constitution’ of the state, made it possible to conceive a fascist Stato di diritto subjected to the concept of the ethical state,41 yet at the same time distinguished from the Rechtsstaat rooted in the nineteenth century but also from the German propensity to overcome – after the Nazi seizure of power – the boundaries of liberal individualism through the category of Volkgemeinschaft (People’s community). Nevertheless, before the advent of Nazism, the controversy between Kelsen and Schmitt on ‘The guardian of the constitution’ already illustrated the opposing arguments deployed to legitimate or repudiate the dismantling of the liberal rule of law.42 36 See E Gentile, The Struggle for Modernity. Nationalism, Futurism, and Fascism (Praeger, 2003). 37 S Panunzio, Lo Stato di diritto (Il solco, 1922). 38 A Rocco, La trasformazione dello Stato. Dallo Stato Liberale allo Stato fascista (La Voce, 1927) 7. 39 L Lacchè, ‘The Shadow of the Law: the Special Tribunal for the Defence of the State between Justice and Politics in the Italian Fascist Period’ in S Skinner (ed), Fascism and Criminal Law: History, Theory, Continuity (Hart Publishing, 2015) 15–33. 40 Fundamental are the works of P Costa, Lo stato immaginario. Metafore e paradigmi nella cultura giuridica italiana fra Ottocento e Novecento (Giuffrè, 1986); P Costa, ‘Lo “stato totalitario”: un campo semantico nella giuspubblicistica del fascismo’ (1999) XXVIII Quaderni fiorentini per la storia del pensiero giuridico, on the relationships between ‘stato totalitario’ and ‘stato di diritto’ 75–90; see also M Caravale, Una incerta idea. Stato di diritto e diritti di libertà nel pensiero italiano tra età liberale e fascismo (il Mulino, 2016). 41 Costa (n 3) 127–29. 42 See L Vinx (ed), The Guardian of the Constitution: Hans Kelsen and Carl Schmitt on the Limits of Constitutional Law (CUP, 2015); O Beaud and P Pasquino (eds), La Controverse sur ‘Le guardien de la constitution’ et la justice constitutionnelle. Kelsen contre Schmitt (Éditions Panthéon-Assas, 2007); D Diner and M Stolleis (eds), Hans Kelsen and Carl Schmitt: A Juxtaposition (Bleicher Verlag, 1999).

34  Luigi Lacchè As we have seen, the judicial review of laws became for Hans Kelsen the new pillar of the pluralistic constitutional state, transforming and ‘incorporating’ a number of liberal state foundations. For Carl Schmitt, however, the nineteenth-century rule of law was no longer able to lead back to political unity the conflicting pluralism of the legislative state (the Weimar Republic was, finally, the negative paradigm) and it was necessary therefore to found the ‘total’ administrative state (der Totale Staat).43 Rechtsstaat was an outdated political concept now filed away as something from the past. For Schmitt all political concepts, having a polemical meaning, were bound to a concrete situation: Rechtsstaat was at the beginning of 1930s simply ‘crap’, a sort of generic passepartout evoked to defame its alleged ‘enemies’. In the German debate we can see highlighted the radical and rapid transition to a new horizon, that of the Führerstaat seen as a political regime grounded on the fundamental bond between Führer and Volk. Conservative authors like Otto Koellreutter44 sought to affirm that Rechtsstaat – once detached from its bourgeois origins – was a concept that was still meaningful but in the sense of a national-social state, linked to the Obrigkeitsstaat (authoritarian state), whereas Carl Schmitt for his part emphasised the radical transformation of the legislative state in favour of a new ‘state of justice’ – based on the administrative bureaucracy – able to affirm the ‘concrete order’ of the people embodied by the Führer:45 The quarrel over the question of whether the new State should remain a Rechtsstaat was thus a tactical skirmish during the first phase of the consolidation of the regime. It took place not only between national conservatives and ‘revolutionaries’, but also between those National Socialists who were demanding the complete elimination of the old state, and those who believed that tactical lip service to the ‘Rechtsstaat’ was (still) called for.46

The debates on the Stato di diritto in fascist Italy and on the Rechtsstaat in preNazi and Nazi Germany47 manifest different strategies in abusing the semantic and rhetorical ambiguity of those concepts.48 Both references fulfilled several different functions in dealing with the legacy of the common core of rule of law: separation between state and society, individualism, parliamentarianism, protection of rights, 43 C Schmitt, ‘Die Wendung zum totalen Staat’ in (1931) December European Review, then in Positionen und Begriffe im Kampf Weimar – Genf – Versailles 1919–1939, 4th edn (Duncker & Humblot, 2014). 44 O Koellreutter, Grundriss der allgemeinen Staatslehre (Mohr, 1933). See also H Lange, Vom Gesetzesstaat zum Rechtsstaat (Mohr, 1933). 45 See P Caldwell, ‘National Socialism and Constitutional Law: Carl Schmitt, Otto Koellreutter and the Debate over the Nature of the Nazi state, 1933–1937’ (1994) 16 Cardozo Law Review 399–427; O Beaud, ‘La critique de l’État de droit chez Carl Schmitt’ (1993) 24 Cahiers de philosophie politique et juridique de l’Université de Caen, L’État de droit, 111–25; W Schuller, ‘Der Rechtsstaat bei Carl Schmitt. Der Einbruch der Zeit in das Spiel’ in R Morsey et al (eds), Staat, Politik, Verwaltung in Europa. Gedächtnisschrift für Roman Schnur (Duncker & Humblot, 1997) 117–33; C Hilger, Rechtsstaatsbegriffe im Dritten Reich. Eine Strukturanalyse (Tübingen, 2003) 33 ff.; R Car, ‘Rivoluzione nazionale e Stato di diritto nel pensiero di Otto Koellreutter’ (2013) 1 Sociologia 29–4. 46 Stolleis (n 25) 351. See also M Stolleis, The Law under the Swastika. Studies on Legal History in Nazi Germany (University of Chicago Press, 1998) 87 ff; 102 ff.; M Stolleis, ‘Que signifiait la querelle autour de l’État de droit sous le Troisième Reich?’ in Jouanjan (ed) (n 24) 373–83. 47 AJ De Grand, Fascist Italy and Nazi Germany. The ‘Fascist’ Style of Rule (Routledge, 1995). 48 cf A De Martino, ‘I rapporti tra la dottrina italiana e quella tedesca durante il fascismo intorno allo stato di diritto’ (2018) 1 Rivista AIC.

Rule of Law Metamorphoses in the Twentieth Century  35 division of powers. The Fascist Stato di diritto was the ‘mirror’ of a composite political-constitutional regime, a sort of intricate juxtaposition, a mosaic, of various authoritarian and totalitarian institutions and experiences. Paradoxically, the Fascist Stato di diritto – a ‘performative’ oxymoron – became, to a greater extent in fact than the Nazi experience, a ‘model’ or at least a reference point for other, very different, authoritarian regimes.49 The principle of legality was a ‘patina’ useful for those concerned not to seem to have broken radically with the liberal-authoritarian legacy. In the criminal law and justice system the difference between the two regimes was all too evident. The Nazi scrapping of the principle ‘nullum crimen sine lege’ – replaced by that of ‘nullum crimen sine poena’ – and of the prohibitions upon non-retroactivity of the law and analogy disclosed a radical break with the liberal rule of law tradition within the new Führerstaat framework.50 In Italy, Fascism did not follow the extremist path of Nazi Germany. Although in 1939 legal philosopher Giuseppe Maggiore proposed to subvert systematically the principle of legality,51 his remained an isolated case. According to Piero Calamandrei, Nazism and Fascism both attacked the rule of law. The Nazis openly destroyed legality, while the Italian fascists set out to falsify it.52 The difference lies in the relative intensity and scope of the action taken. So, after the fall of Fascism some criminal law scholars elaborated the so-called ‘brake theory’, arguing that they had been able, thanks to the adoption of the technical-legal approach, to limit the ‘Fascist orientation’ and to safeguard the ‘liberal core’ of Italian liberal penal doctrine and hence the rule of law.53 For this reason it was sufficient, they argued, to remove the Fascist patina in order to recover the liberal background and the corresponding legislation. However, the ‘brake’ theory seems unconvincing, as does the attempt of many legal scholars who were active during the Fascist period to entrench themselves in a supposed position of ‘neutrality’ by virtue of their having purportedly adhered to the technical-legal approach. Such arguments referred to the kinds of legal formalism adopted by Rocco’s codes, which can be regarded as a sort of shelter behind which they sought to hide, in order not to be tainted by the wrongful policies of the regime. 49 SU Larsen (ed), Fascism outside Europe: the European impulse against domestic conditions in the diffusion of global fascism (Social Science Monographs; New York, Distributed by Columbia University Press, 2001); C Iordachi (ed), Comparative fascist studies: new perspectives (Routledge, 2010). 50 See G Werle, Justiz-Strafrecht und polizeiliche Verbrechensbekämpfung im Dritten Reich (de Gruyter, 1989). 51 With the following definition: ‘Every fact that offends the authority of the state is also a crime, and is worthy of punishment according to the spirit of the Fascist revolution and the will of the Duce, the sole interpreter of the will of the Italian people. This fact, unless provided for by a specific criminal law, is punished according to analogy’. 52 P Calamandrei, ‘La crisi della legalità’ (1944) in P Calamandrei, Costituzione e leggi di Antigone. Scritti e discorsi politici (La Nuova Italia, 1996) 6–7. 53 P Piasenza, ‘Tecnicismo giuridico e continuità dello Stato: il dibattito sulla riforma del codice penale e della legge di pubblica sicurezza’ (1979) X 3 Politica del diritto 290 ff; M Sbriccoli, ‘Le mani nella pasta e gli occhi al cielo. La penalistica italiana negli anni del fascismo’ (1999) 28 II Quaderni fiorentini per la storia del pensiero giuridico moderno, 821–22, 829, 843, 846; L Lacchè, ‘“Sistemare il terreno e sgombrare le macerie”. Gli anni della “costituzione provvisoria”: alle origini del discorso sulla riforma della legislazione e del codice di procedura penale (1943–1947)’ in L Garlati (ed), L’inconscio inquisitorio. L’eredità del codice Rocco nella cultura processualpenalistica italiana (Giuffrè, 2010) 271–304.

36  Luigi Lacchè It is more evident that the ‘constitution’ of the Third Reich can be identified with its rapid settling upon a racist ‘regime of injustice’ (Recht im Unrecht), despite some elements of continuity with the Rechtsstaat.54 In Fascist Italy, contrary to some appearances, the principle of legal certainty did not perform the same functions that it would have done in a liberal-democratic legal system. The principle dictates that one cannot be subjected to penal sanctions unless these are previously provided for by law. During the Fascist regime, however, laws were promulgated without wide, democratic parliamentary debate, but instead as the will of a single party, the Fascist Party, which since the beginning of the dictatorship had trampled on every kind of political opposition. This then was the ‘law’ – legal, but not legitimate – to which the principle of legality referred.55 V.  POST–WORLD WAR II CONSTITUTIONAL RULE OF LAW: A NEW PHASE, OLD ISSUES

The vicissitudes of the interwar rule of law had laid bare the various shortcomings of the ‘wonderful creation of law’ (Santi Romano). Totalitarian and authoritarian regimes had been able to take advantage of the ‘darker sides’56 of the refined architecture of the Rechtsstaat. The liberal state under the rule of law was transformed into the dictatorial ‘dual state’,57 showing thereby how mythical the ‘monolithic’ principle of legality actually was. In the liberal orders the twin track of rule/exception, law/ discretion played already a ‘constitutive’ role, permitting the structural coexistence of legal and discretionary prerogative measures.58 The forms of duality or hybridity made it possible to falsify or misuse the rule of law tenets. Positive formal law did in fact prove unable to resist a range of authoritarian measures. On the contrary, the principle of legality was ‘used’ to ‘legitimate’ – on the basis of a mass consensus59 – violence, political repression and the abominable promulgation and implementation of racial laws. The abyss into which the rule of law fell during the interwar decades occasioned the formulation of at least two main issues after World War II: first of all that of the 54 ‘It may seem paradoxical to speak of law and despotism in the same breath, for to do so raises the dilemma of the existence of “law” in a system that is on the whole “unlawful” and “unjust” or at least commits many unlawful acts […]’ (Stolleis, The Law Under the Swastika (n 46) 5). 55 G Neppi Modona and M Pelissero, ‘La politica criminale durante il fascismo’ in L Violante (ed), Storia d’Italia, Annali XII, La criminalità (Einaudi, 1997) 831; G Neppi Modona, ‘Principio di legalità e giustizia penale nel periodo fascista’ (2007) XXXVI Quaderni fiorentini per la storia del pensiero giuridico 983; MA Cattaneo, ‘Il diritto penale tra fascismo e stato di diritto’ in F Lanchester and I Staff (eds), Lo stato di diritto democratico dopo il fascismo ed il nazionalsocialismo (Giuffrè, 1999) 275. 56 C Joerges and N Singh Ghaleigh (eds), Darker Legacies of Law in Europe: the Shadow of National Socialism and Fascism over Europe and its Legal Traditions (Hart Publishing, 2003); K Hite and P Cesarini (eds), Authoritarian Legacies and Democracy in Latin America and Southern Europe (University of Notre Dame Press, 2004); A Costa Pinto and L Morlino (eds), Dealing with the legacy of the Authoritarianism. The ‘Politics of the Past’ in Southern European Democracies (Routledge, 2011). 57 E Fraenkel, The Dual State. A Contribution to the Theory of Dictatorship (OUP, 1941). 58 Lacchè (n 39). For France see MO Baruch, ‘Vichy and the Rule of Law’ (2008) 6 Bulletin du Centre de recherche français à Jérusalem, see https://journals.openedition.org/bcrfj/2992. 59 S Skinner (ed), Ideology and Criminal Law. Fascist, National Socialist and Authoritarian Regimes (Hart Publishing, 2019).

Rule of Law Metamorphoses in the Twentieth Century  37 difficult and ambiguous transition towards the new democratic and constitutional regimes; secondly that of the reconstruction of a ‘new’ form of rule of law, one capable of innovating radically as regards its contents, mechanisms and tools. Whether or not Nazi and Fascist law – to evoke both of the more complex experiences in Europe – were indeed ‘law’, in any case the need to effect a profound metamorphosis of the state under the rule of law seemed to be urgent. After the war, democratic Constitutions and the Universal Declaration of Human Rights began to frame this radical change, thereby bringing to the fore different legal and cultural backgrounds. British and American rule of law, Weimar social constitutionalism, Kelsenian doctrine, natural law references, and, indeed, new legal concepts afforded the ‘materials’ to build or to improve rule of law as a complex of principles. The opening statements from the Preamble to the Universal Declaration evoke ‘the recognition of dignity and of the equal and inalienable rights of all members of the human family’, with the peoples of the United Nations finding reaffirmed in the Charter ‘their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women’, thereby putting human rights under the protection of the rule of law. What remained of the liberal Rechtsstaat legacy had to be rethought in the light of this epistemic turn. The alpha and omega now became the human person. His/her dignity, equality and liberty are inalienable values, being ontologically prior to the state and its law. These fundamental values find in the law of the Constitution the conditions under which they may exist and be protected. The Constitution of a democratic state is ‘rigid’, first and foremost, inasmuch it contains and proclaims a core of intangible shared fundamental principles defended against each and every kind of violation. This approach is designed to overcome the ‘ambiguity’ of the Rechtsstaat so as to prevent ‘disregard and contempt for human rights that have resulted in barbarous acts which have outraged the conscience of mankind’. Constitutional inviolability is the reference concept. Of course, there is not merely one single path. Traditions and historical foundations reemerge. But some common trends may be identified. Post-war constitutionalism recovers the ancient ‘culture’ of the limit. The inviolability of fundamental rights requires the raising of high barriers. Anglo-Saxon rule of law – for a wide range of reasons – had manifested an ‘intrinsic’ force. Dicey had already highlighted this historical dynamic: the English Constitution had inseparably connected rights with the means of enforcing them by the courts through the incremental process of common law decision-making. The Americans, sharing this strong cultural background, entrusted to the judges and the Supreme Court the judicial review of legislation, an extraordinary invention of modern constitutionalism. Other kinds of limits and checks and balances contributed to enforce rule of law but judicial protection was probably the most important pillar. On the European continent the Rechtsstaat, considered basically as a legal and administrative state, encountered serious difficulties when attempting to follow this same path. As we have seen, political sovereignty and a legicentric perspective were strictly linked. After World War II it was likewise not a simple matter to change this deep-rooted doctrine. After all, it was only during the twentieth century that American ordinary courts and the Supreme Court had implemented the protection

38  Luigi Lacchè of individual rights and above all of the rights of minorities,60 ‘a history closely connected to the role that the United States took on at the international level in the battle against the spread of totalitarianism in Europe’.61 The constitutional engineering of the second post-war period connected the principle of inviolability of fundamental rights with the dynamics of constitutional justice. The Austrian Kelsenian ‘model’ (more than the American experience)62 was only the starting point but the new Constitutions (eg, German, Italian, French) grafted several new branches on to the trunk of constitutional justice, in order to overcome the omnipotence of the legislator and limit the threat posed by Leviathan to the freedom of the individual and of the minorities. The new kind of democratic Constitution recognises and organises pluralism and coexistence between distinct groups and political parties; it provides tools for the resolution of conflicts; it seeks to balance the democratic track (people’s sovereignty and political will) with the juridical supremacy of the Constitution. The correct formation of political will cannot be left in the hands of variable political majorities. Constitution is the condition of sustaining and preserving pluralism, and the ‘device’ serving to contain the risk of arbitrariness on the part of the majority. Fundamental rights do not protect individuals only, but minorities also. A reinforced majority can be required to review the Constitution, meaning that the main issues can only be resolved by means of a certain degree of constitutional collaboration with the minority. The sphere of inviolability of constitutional rights is predicated upon the constitutionality of the laws, and in the case of conflict the judicial review of legislation is the only way to find a solution. A number of different post-war constitutional experiences tend to confirm the rule of law notion. Nevertheless, we must consider this phenomenon to be a ‘process’ linked to time, space, traditions and historical backgrounds. A wide range of different factors affect the concrete functioning of rule of law based constitutional democratic systems. Constitutional justice can assume various forms, and judicial and ‘political’ dimensions, depending upon the Constitution’s characteristics, upon political relations and upon the overall constitutional setting of the form of government and so on. Post-war rule of law incorporates a number of principles and fundamental values (no arbitrary power, the supremacy and independence of law under the Constitution rule, non-discrimination, respect for universal human rights …) and the notion has been merged into some constitutional texts. Many Constitutions, starting with the German one, introduced the notion into the text itself.63 The Portuguese Constitution of 197664 and the Spanish Constitution 60 RM Cover, ‘The Origins of Judicial Activism in the Protection of Minorities’ (1982) 91 Yale Law Journal, 1287–1316. 61 B Casalini, ‘Popular Sovereignty, the Rule of Law, and the “Rule of Judges” in the United States’ in Costa and Zolo (n 3) 203. 62 For the original perspective, see H Kelsen, ‘Judicial Review of Legislation: A Comparative Study of the Austrian and the American Constitution’ (1942) 4 The Journal of Politics 183–200. 63 ‘… [t]he constitutional order in the states must conform to the principles of the republican, democratic and social state under the rule of law’, German Basic Law (Grundgesetz), art 28, § 1. 64 Article 2 (Democratic state based on the rule of law): ‘The Portuguese Republic is a democratic state based on the rule of law, the sovereignty of the people, plural democratic expression and political organisation, respect for and the guarantee of the effective implementation of the fundamental rights and freedoms,

Rule of Law Metamorphoses in the Twentieth Century  39 of 197865 further strengthened the formula. The specific reference to rule of law became a sort of ‘brand’ for the democratic transitions that took place. This was the case with some of the former Soviet Union countries and those states that had previously been members of the ‘Soviet bloc’. All over the world, in the last decades, the rule of law has doubtless gained space and relevance but the formal constitutional declaration of principles, rules and remedies is never enough to guarantee in actual fact the principles of the supremacy of the law, equality before the law, fairness in the application of the law, the separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness, and procedural and legal transparency. So, rule of law enforcement is always a very complex ‘process’ depending on a wide series of conditions and site-specific features. After all we have ascertained that British rule of law, American rule of law, German Rechtsstaat, French État de droit, Italian Stato di diritto and so on were, for a long time, distinctive paths marked by a number of different doctrines and final achievements. Their background rested on a multiplicity of cultural traditions, constitutional cultures, ‘anthropological’ attitudes. Only after World War II and a drawn-out process of ‘convergence’ has it become possible to identify in the lemma rule of law a communicable common core.66 In Europe, in particular, rule of law implementation in the individual states has made it possible to elaborate a series of core elements.67 Once again the key element must be identified with the judicial enforceability and the reviewability of decisions of public authorities by independent courts. In 1986 the European Court of Justice referred to the European Community (EC) as ‘a Community based on the rule of law’.68 Two decades later the Court has opined and the separation and interdependence of powers, with a view to achieving economic, social and cultural democracy and deepening participatory democracy’. 65 ‘Consolidate a State of Law which ensures the rule of law as the expression of the popular will’ (Preamble); ‘Spain is hereby established as a social and democratic State, subject to the rule of law, which advocates freedom, justice, equality and political pluralism as highest values of its legal system’ (s 1.1). 66 ‘The Rule of Law has become “a global ideal and aspiration”, with a common core valid everywhere. This, however, does not mean that its implementation has to be identical regardless of the concrete juridical, historical, political, social or geographical context. While the main components or “ingredients” of the Rule of Law are constant, the specific manner in which they are realised may differ from one country to another depending on the local context; in particular on the constitutional order and traditions of the country concerned. This context may also determine the relative weight of each of the components’ (Council of Europe, European Commission for Democracy through law (Venice Commission), Rule of law checklist, adopted by the Venice Commission at its 106th Plenary Session (Venice, 11–12 March 2016) 9, B § 34. 67 ‘The Union is founded on the values of the respect for human dignity, freedom, democracy, equality, the rule of law and respect for the human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.’ (Article  2, Treaty on European Union). In its report, the Commission concluded that, despite differences of opinion, consensus exists on the core elements of the rule of law as well as on those of the Rechtsstaat and of the État de droit, which are not only formal but also substantive or material (materieller Rechtsstaatsbegriff). These core elements are: (1) Legality, including a transparent, accountable and democratic process for enacting law; (2) Legal certainty; (3) Prohibition of arbitrariness; (4) Access to justice before independent and impartial courts, including judicial review of administrative acts; (5) Respect for human rights; and (6) Non-discrimination and equality before the law. 68 Case 294/83 Les Verts v Parliament [1986] ECR 1339, § 23. See ML Fernandez Esteban, The rule of law in the European Constitution (Kluwer Law International, 1999); L Pech, The Rule of Law as a

40  Luigi Lacchè that ‘Access to justice is one of the constitutive elements of a Community based on the rule of law and is guaranteed in the legal order based on the Treaty in that the Treaty has established a complete system of legal remedies and procedures designed to permit the Court of Justice to review the legality of measures adopted by the institutions […]’.69 The centrality of the role of judges in contemporary legal pluralism asks first of all for ‘a recognition of the methods used for the interpretation of rules and the plausibility and reasonableness of the very rules of the other legal systems’.70 In conclusion, what is the legacy that the twentieth century has bequeathed to us in terms of rule of law? There are of course many profiles, but one is the ongoing endeavour (and tension) to find and preserve an effective balance between democracy and rule of law, namely between people’s will and the constitutional/legal machinery of limits to protect and guarantee human dignity, fundamental rights, pluralism and all kinds of minorities. This balance was the result, as I have tried to show, of very dramatic events and of a huge intellectual effort. Our critical horizon does not seem to be preoccupied by dictatorship or the putative advent of new totalitarianisms. The pitfalls are far more nuanced and subtle. The European Union is once again an interesting ‘laboratory’. Liberal democracies can be called into question under pressure from illiberal and populist forces. The problems come when one tends to consider only one of the two pillars: people’s sovereignty and the majority principle seen as the legitimate sanction to erode the second pillar, the democratic state under the rule of law. The ‘majoritarian democracy’ – as in Poland or Hungary71 – tends to weaken first of all the independent

Constitutional Principle of the European Union (New York University School of Law, The Jean Monnet Working Paper, 2009), see http://jeanmonnetprogram.org/wp-content/uploads/2014/12/090401.pdf; A Magen and L Pech, ‘The rule of law and the European Union’ in May and Winchester (n 6) 235. 69 Case C-131/03 P RJ Reynolds Tobacco Holdings Inc v Commission of the European Communities [2006] E.C.R. I-7795, 7837. On the constitutive idea of justice (‘Europe is united through a specific European idea of justice’, 520), see now U Müßig, Reason and Fairness. Constituting Justice in Europe, from Medieval Canon Law to ECHR (Brill Nijhoff, 2019). 70 F Viola, ‘The Rule of Law in Legal Pluralism’ in T Gizbert-Studnicki and J Stelmach (eds), Law and Legal Cultures in the 21st century. Diversity and Unity (Oficyna, 2007) 124. 71 On these two cases, within a now vast literature, P Lendvai, Hungary: Between Democracy and Authoritarianism (Hurst, 2012); A Von Bogdandy and P Sonnevend (eds), Constitutional Crisis in the European Constitutional Area: Theory, Law and Politics in Hungary and Romania (Hart Publishing, 2015); P Krasztev and J Van Til (eds), The Hungarian Patient: Social Opposition to an Illiberal Democracy (CEU Press, 2015); B Bugarič, ‘A Crisis of Constitutional Democracy in Post-Communist Europe: Lands In-Between Democracy and Authoritarianism’ (2015) 13 (1) International Journal of Constitutional Law 219–45; B Greskovits, ‘The Hollowing and Backsliding of Democracy in East Central Europe’ (2015) 6(1) Global Policy 28–37; A Ágh, ‘The Decline of Democracy in East-Central Europe: Hungary as the Worst-Case Scenario’ (2016) 63 5–6 Problems of Post-Communism 277–87; B Pająk-Patkowska and M Rachwał (eds), Hungary and Poland in Times of Political Transition: Selected Issues (Faculty of Political Science and Journalism Press, Adam Mickiewicz University, 2016); N Bermeo, ‘On Democratic Backsliding’ (2016) 27 (1) Journal of Democracy 5–19; A Pap, Democratic Decline in Hungary: Law and Society in an Illiberal Democracy (Routledge, 2017); M Bogaards, ‘De-democratization in Hungary: diffusely defective democracy’ (2018) 25(8) Democratization 1481–99, see https://doi.org/10.1080/13510347.2018.1485015; W Sadurki, Poland’s Constitutional Breakdown (OUP, 2019).

Rule of Law Metamorphoses in the Twentieth Century  41 judiciary and the constitutional courts,72 but also independent media, civil society organisations and local governments. The main argument used by the political majority is the supremacy of the ‘will of people’ against the (non-elected) institutions called upon to preserve checks and balances, and endeavouring to limit the majority’s ‘limitless’ power. Political populism recasts older questions. The tension between ‘democracy’ and rule of law is a permanent preoccupation. The current phase outlines new challenges and metamorphoses, which themselves require innovative and brave solutions.

72 But we have to consider the analysis of the wide- ranging role of the judiciary and constitutional courts in the practice of governance in the European Union context: see A Stone Sweet, Governing with Judges: Constitutional Politics in Europe (OUP, 2000); O Gerstenberg, Euroconstitutionalism and Its Discontents (OUP, 2018).

42

4 Rule of Law and Democracy DIETER GRIMM*

I.  TENSION AND INTERDEPENDENCE

T

he relationship between democracy and the rule of law is characterised by both tension and interdependence.1 The tension exists because each principle has the tendency to overwhelm the other. Democracy tends to set aside legal bonds if they collide with the actual will of the majority. The rule of law tends to fetter politics and reduce it to the implementation of the law. Driven to the extreme, both threaten to be self-destructive, democracy because it can end up in a dictatorship of the majority, the rule of law because it can end up in immobility. The interdependence finds its reason just in this threat. Each principle has to be balanced by elements of the other one. The modalities of the accommodation vary with the concept of the two principles. Both the rule of law and even more so democracy, are ambiguous, contested and variable notions. There is not the democracy and the rule of law.2 However, for the purpose of this article, it is unnecessary to unfold the whole variety. It seems sufficient to distinguish two broad notions, one more formal and simplistic, one more substantive and ambitious, and to neglect all the subcategories.3 Both share a few basic elements, but differ for the rest. The substantive notions combine the two principles from the outset, while the relationship is less obvious with the formal ones.

* Humboldt University, Berlin. 1 Democracy and the rule of law are mostly treated separately, but see for the relationship JM Maravall and A Przeworski (eds), Democracy and the Rule of Law (CUP, 2003); L Morlino and G Palombella (eds), Rule of Law and Democracy (Brill, 2010). 2 See eg for democracy D Held, Models of Democracy, 3rd edn (Polity, 2006); M Schmidt, Demokratietheorien, 6th edn, (Springer, 2019); for the rule of law RH Fallon, ‘“The Rule of Law” as a Concept of Constitutional Discourse’ (1997) 97 Columbia L.R. 1; R Grote, ‘Rule of Law, Rechtsstaat and Etat de droit’ in C Starck (ed), Constitutionalism, Universalism and Democracy: A Comparative Analysis (Nomos, 1999); M Rosenfeld, ‘The Rule of Law and the Legitimacy of Constitutional Democracy’ (2001) 74 Southern California L.R. 1307; L Heuschling, Etat de droit, Rechtsstaat, Rule of Law (Dalloz, 2002). 3 See U Volkmann, ‘Die zwei Begriffe der Demokratie’ in K Hofmann and K Naumann (eds), Europäische Demokratie in guter Verfassung? (Nomos, 2010) 14; J Raz, ‘The Rule of Law and its Virtue’ in J Raz, The Authority of Law (Clarendon Press, 1979) 179, 210.

44  Dieter Grimm II.  DEMOCRACY’S RELATIONSHIP WITH THE RULE OF LAW

The formal and the substantive concept of democracy share a number of features that distinguish them from non-democratic systems. Both start from the assumption that the people are the ultimate source of all public power. Popular sovereignty is the legitimating principle of democracies. The people possess the constituent power and they retain influence on the exercise of the constituted power. Democracy thus stands in opposition to political systems that legitimise public authority not by consensus, but by a certain pre-established truth, be it religious or secular, or by the superior quality or insight of a person like the monarch or a group of persons like an aristocracy or a certain movement or party. It also stands in opposition to systems that attribute the original power to the people, but allow that it is handed over unconditionally to an omnipotent leader, so that the first use of popular power is also the last. Moreover, both basic types of democracy must acknowledge that, at least in rather vast and complex societies as they exist today, the people cannot govern themselves, but need representatives and agents who act on their behalf and in their interest. The relationship is conceived as one of ‘master and servant’ or ‘principal and agent’. This does not exclude direct interventions of the people in form of a plebiscite or referendum. But they will always remain exceptional. The mass of problems that have to be solved by political decisions almost daily can only be handled by institutions and persons specialised in politics and public administration. Because of this necessity, representative democracy is not a minor form of democracy, compared to plebiscitarian democracy.4 Variability exists only with regard to the combination of these elements. Democracy can be more or less representative, but it cannot be not representative. If this is the condition under which democracies, other than monocratic systems, operate, the central democratic problem is the mediation between the inevitable plurality of opinions and interests in society and the mandatory unity of state action. This problem is solved by a chain of delegation. In a democracy, the power to govern is power delegated by the people. It is delegated to persons who represent the people and whose decisions are ascribed to the people and have binding force on it. In this sense, it can be said that in a democracy the addressees of the bonds are at the same time their authors.5 Democracy is self-government by the people, but it is self-government by ascription, not in the sense that those who actually govern and those who are governed are identical. This difference has to be bridged by adequate mechanisms. Delegated power needs organisation. The central mechanism to determine the representatives of the people who exercise public authority is the election. It is difficult to imagine a democracy as characterised here without elections. However, before elections can be held, a number of questions have to be answered. It must be determined for which institutions elections

4 See E-W Böckenförde, ‘Demokratische Willensbildung und Repräsentation’ in J Isensee and P Kirchhof (eds), Handbuch des Staatsrechts III, 3rd edn (CF Müller, 2005) 31. 5 See J Habermas, ‘Über den inneren Zusammenhang von Rechtsstaat und Demokratie’ in J Habermas, Die Einbeziehung des Anderen (Suhrkamp, 1996) 298 (English version: The Inclusion of the Other (MIT Press, 1998)).

Rule of Law and Democracy  45 are held and who may vote and who may be elected. Likewise, it has to be decided in which intervals elections will take place and how the precincts are apportioned. Furthermore, guidelines as to how the election is conducted must be developed. Of utmost importance is who counts as elected. The democratic answer to this question is: the one who got the majority of votes. But as far as seats in Parliament are concerned, this cannot be ascertained without a determination how votes translate into mandates. Moreover, the election cannot take place without the prior selection of candidates. Since a pre-established will or interest of the people exists only for some theories of democracy, but not in social reality, where rather an immense variety of opinions and interests will be found, the election presupposes a reduction of this variety to a comprehensible number of alternatives among which the voters may choose. To form such alternatives and to present them to the electorate is usually the function of political parties. Parties are organisations rooted in society, but striving for influence within the state. They unite persons of similar views and interests, condense the views and interests to a platform or programme and select candidates who stand for this programme and compete to be entrusted with the power to rule for a limited period of time until the next election may mix the cards differently. The dependence of elections on these preconditions makes a prior agreement on them necessary. In order to exclude the possibility of manipulations, this agreement must be as precise as possible and binding for the parties, the candidates, the voters and the staff who manage the election. Since elections may lead to a change of government if the people so wish, the conditions of transition must be determined. As agreements on the conditions of gaining and losing power are often difficult to reach, it makes sense to conclude them for a series of future elections instead of negotiating them before every election anew. All this points in the direction of a legal regulation, and since there is no democracy without elections and no election without a set of binding rules, democracy depends, at least in this respect, on the rule of law. But the demand for regulation does not end with the election. It is an inbuilt risk of representative democracy that the representatives emancipate themselves from the needs and expectations of the people and pursue interests of their own. This is why, before the representatives are entrusted with the power to rule on behalf of the people, the people formulate the conditions under which they are to govern and compliance with which conveys legitimacy on their acts. These conditions must be binding for the representatives. This means that they have to adopt the quality of law because only the law can convey collectively binding force on the rules and extend them beyond the parties to the agreement and beyond the moment of adoption. In addition, they must enjoy primacy over their political acts. They are rules about ruling and as such not at the disposition of those to whom they are addressed. These are precisely the distinct features of constitutions.6 Within the elected organ, the need for rules about decision making repeats itself. In a democracy, the criterion is once again majority. However, majority is a purely numerical criterion unrelated to any substantive quality. This explains the intensive



6 See

D Grimm, Constitutionalism. Past, Present, and Future (OUP, 2016) 22.

46  Dieter Grimm debate about the justification of the majority principle.7 The theories vary. Some authors believe that the majority principle leads to better results. For others, the decisive argument is the minimum of oppression: the smaller number of people must live with decisions that they do not support. Again others argue that the majority rule is the only rule in which political equality can be expressed. But all agree that for practical reasons, the majority principle is unavoidable.8 Just as there is no democracy without election, there is no democracy without the majority rule, however this principle is justified and however it is concretised. In this aspect as well, democracy depends on the rule of law. It guarantees that the conditions set by the people for the acts of their representatives are respected by them. But the importance of the rule of law for democracy does not exhaust itself in this aspect. Just as the people expect that their representatives respect the constitution, the elected representatives who have a mandate from the people to take collectively binding decisions for society depend, for their part, on the vast executive, administrative and judicial staff’s compliance with the decisions adopted in the democratic process. The principle of legality which guarantees this is mostly viewed from the perspective of the individual. It excludes arbitrary treatment. But it is also a necessary condition of democracy. Democracy is doomed to fail if the decisions adopted in the democratic process are not faithfully executed on the level of application and law enforcement. These preconditions of democracy can hardly be denied even by a minimalist or radical democrat. They are common to all notions of democracy. They may be formulated in many different ways, but they cannot be left unregulated. However, this is more or less the end of the commonalities between a more formal and a more substantive understanding of what democracy is about. The formal notion is satisfied if the people elect their representatives and if the representatives take their decisions according to the majority rule. The rule of law is democratically acceptable insofar as it organises the formation of the majority will and guarantees its implementation. In its formal understanding, democracy is largely identified with majority rule. It can be called formal because all the legal prerequisites of democracy are of an organisational or procedural nature. They do not contain any substantive requirements. Yet, it is not sufficient to say that substantive requirements are absent. For a formal understanding they would be incompatible with democracy because they limit the scope of the majority principle. For the formalist notion of democracy, whatever the majority decides in due form is binding for society. Such an understanding does not make a constitution superfluous, but the constitution is confined to organisational and procedural provisions. It would not contain fundamental rights whose function is precisely to constrain the majority rule. As the deputy Crenière put it already 1789 in the debate of the French National Assembly on the Declaration of Rights: There is only one fundamental right, namely the right to participate in the formation of the general will.9 The general will is identified with the will of the majority. Substantive rights would allow the minority to prevail over the majority. 7 See E Flaig, Die Mehrheitsentscheidung (Ferdinand Schöningh, 2013). 8 Recently, the old idea of a lottery found new interest, but it is suggested only for specific purposes or offices, not in general. See eg H Buchstein, ‘Democracy and Lottery Revisited’ (2019) 26 Constellations 361. 9 Archives parlementaires de la Révolution francaise VIII, 451.

Rule of Law and Democracy  47 But is such a position tenable? All notions of democracy would agree that elections can express the popular will only if they are free and equal. Hence, at least this material precondition of a democratic election should be exempted from majority vote. Otherwise, democracy cannot protect itself against being abolished by majority vote. A purely formal notion of democracy gives those forces a chance who do not share the basic assumption of democracy that the general will has to be formed under conditions of a plurality of opinions and interests and that this pluralism is not only empirically given, but normatively legitimate. To the contrary, these forces pursue an absolute truth or pre-existing will vis-à-vis which freedom cannot be permitted. If they win a majority in a free election, they use the legislative power unimpeded by substantive requirements to perpetuate their rule and transform the democratic into an authoritarian system. However, when the necessity of guaranteeing free elections has been accepted even by a formal understanding of democracy, a further question will arise, namely when an election can be said to be free. Here again, more formal and more substantive answers exist. A formal notion of free elections would be satisfied if the voter has a choice. The minimal choice is one between yes and no to a uniform list. But this comes very close to a mere acclamation, like advocates of an identitarian notion of democracy describe it as the adequate role for the people.10 In a representative democracy, the plurality of opinions and interests in society should find an expression on the ballot and allow the voter to choose among various candidates or parties and thereby among different political concepts of or strategies for the common good. But this would still be a very thin notion of freedom because it leaves everything out that precedes and follows the election. In the period of time before an election, freedom has a double point of reference. It refers to the competitors for public office and to the voters who choose among them. Since it is the function of the competing political parties and candidates to transport views and interests of citizens into the process of political decision making, free elections mean that the alternatives presented to the voter may be formed freely, which implies that everybody must have the right to set up a party or group that strives for certain goals and to nominate candidates who promise to implement them if they are elected. Free means furthermore that the parties have the same chance to attract support for their candidates and views from the electorate. This freedom matters particularly in the election campaign. Regarding the election campaign, free elections mean foremost state neutrality vis-à-vis the competitors.11 The campaign is the forum where parties and candidates try to convince the voters that their ideas and projects would serve the country better than those of their competitors. They seek a mandate from the people to transform their party programme into political measures through the legislative and financial means of the state. The state, more precisely: those organs of the state whose composition depends on elections, the Parliament and the Government, are the object of 10 See C Schmitt, Verfassungslehre (Duncker & Humblot, 1928) 83 (English version: Constitutional Theory (Duke University Press, 2008)). 11 See D Grimm, ‘Die politischen Parteien’ in E Benda, W Maihofer and H-J Vogel (eds), Handbuch des Verfassungsrechts, 2nd edn (De Gruyter, 1994) 599.

48  Dieter Grimm that competition. The decision belongs alone to the people. This puts the state into a passive position regarding the campaign. It may not itself influence the chances of the competitors and the outcome of the election. Taking sides and lending state support to certain competitors while withholding it from others would distort the people’s will. That state neutrality is a condition of free elections becomes even more evident if one acknowledges that, in a representative democracy, the activity of the state is driven by the majority party or parties. They dominate the legislative process, they form the Government and they dispose of the financial and coercive means of the state. State influence on elections would therefore be influence of the ruling party in its own favour and to the detriment of the competitors. Consequently, the ruling party must be prevented from using its legislative majority as well as the resources of the state for purposes of its re-election. A sharp distinction between the organs of the state and the officers and parties who temporarily fill the positions personally is a precondition of democracy. Representative democracy based on elections is incompatible with an identification between the ruling party and the state. However, the state is not the only menace to a free election campaign. The outcome of elections is of immense interest to private actors in various social systems. Therefore, they try to improve the chances of those parties or candidates of whom they expect sympathy for their interests. The support can be given by arguments, but also by money or by payment in kind. There is nothing objectionable about this practice as such. The neutrality that is expected from the state does not apply to societal actors. A democratic problem results, however, from the different strength of the actors. Especially economic interests can usually count on a superior influence, thanks to their financial resources.12 This distributes the chances among the competitors unequally and relativises the equal right to vote. Therefore, freedom of the election requires a regulation of campaign financing in the interest of equal opportunities. Regarding the voters, free elections mean before all that they have a chance to inform themselves freely. Free information has a retrospective and a prospective aspect. Retrospectively, it must be possible to form an opinion on the performance of the outgoing Government that seeks re-election. This requires transparency of government activities. Prospectively, it means free information about the candidates, their programmatic views and their affiliations. Both aspects presuppose an open public debate about political matters. Such a debate cannot develop without the service of media of mass communication, which transmit opinions voiced in society, contribute opinions of their own, thus furnishing the necessary basis for opinion formation and becoming the starting point for new communications. The media system can render this service only if it is itself free. The time after an election is in reality a time between two elections. For a formal understanding of democracy, this time is of little interest. The election has determined the representatives of the people and the formation of the Government. It is now the business of politicians to use the power that was given to them. The majority 12 See for the US where this is a particularly urgent problem: RC Post, Citizens Divided (Harvard University Press, 2014); L Lessig, Republic, Lost: How Money Corrupts Congress (Twelve, 2011).

Rule of Law and Democracy  49 has its way. If the majority misuses its power or neglects the expectations and interests of the population, they will be driven out of office in the next election. The threat to lose the election is seen as a sufficient incentive for the rulers to be responsive to the views and demands of the citizens. Further precautions are unnecessary. For a more substantive understanding of democracy, this time also counts. Democracy does not exhaust itself in periodic elections but culminates in them. The actions or omissions for which democratic governments are held accountable extend over the whole legislative period. The opinion about the majority’s performance and the opposition’s critique is formed during that period. What finally leads to a mark on the ballot is the result of a continuous observation and discussion of the politicians’ performance, a comparison between promises and deeds, the evaluation of alternatives. For this to happen, the elected representatives of the people and the institutions of Government must be embedded in an ongoing discursive process in which opinions and interests may be articulated by individuals and social groups, while the Government explains its measures and the opposition criticises them and offers alternatives. The public discourse is what fills the democratic representation with life. Like with the election campaign, this continuous public discourse can only be generated and upheld by the media of mass communication. The importance of the media system for democracy can hardly be overestimated. A democratic polity will only be as good as its media system. The media, in turn, can contribute to a vibrant democracy only insofar as they have access to the information that a democratic society needs to conduct its own affairs and as they can publish and comment on them free from external domination or pressure. However, because of the importance of media for political success and failure, the freedom of the media is constantly endangered. The threat is routinely expected from the state and the political parties that dispose of its means. But freedom of media and freedom of information as its corollary is also endangered by private forces who control influential parts of the media system and use it to promote their interests.13 These preconditions of a democracy based on free elections cannot be guaranteed by democracy itself. To the contrary, they are specifically endangered by democracy. In a democratic system, the question who may govern for a certain period of time and thus get the chance to implement his programme for the common good, depends on winning the election. This is the imperative under which party politics work. From their point of view, everything that improves their chances seems rational. The best opportunities present themselves to those who are already in power and want to stay there. They dispose of the means of the state, legislative as well as financial, and will be inclined to exploit them for party purposes, to frame the election laws in a way that favours their party, use the resources of the state to promote party goals, influence media reporting, and the like. Under a purely formal notion of democracy all this would not be objectionable. After the experience of the collapse or self-destruction of democracies in the first half of the twentieth century, the soil was prepared for a better protection of



13 See

eg C Edwin Baker, Media, Markets and Democracy (CUP, 2002).

50  Dieter Grimm democracy as such as well as its preconditions. However, this could be reached only by turning to a more substantive understanding of democracy. As a safeguard against self-destruction, so-called eternity clauses on the line of article 79, section 3 of the German Basic Law were adopted in many recent constitutions.14 They shield democracy against constitutional amendments that would abolish or severely damage democracy. In addition, early defence lines were established in the form of the possibility to ban parties or associations that attempt to overthrow the democratic order.15 Strict legal rules try to prevent the use of these means from becoming a threat to democracy. The preconditions of democracy are mainly protected by fundamental rights. Fundamental rights are an important element of the rule of law as it is seen today. They restrain majority decisions, but they do so in the interest of individual selfdevelopment and collective self-government and are thus compatible with a more substantive notion of democracy. For some of these rights, the relationship with democracy is obvious. Freedom of speech, freedom of the media, freedom of information, freedom of association and freedom of assembly have a direct impact on political competition, public discourse and opinion formation. They help in providing society with an unvarnished picture of the state of affairs, put issues and problems on the agenda, which are neglected by government and established parties, keep the political debate open for criticism and alternative views and demand responsiveness from the political class. Some of these rights will fulfil their function for democracy if they are understood in the traditional way as negative rights that prevent encroachments upon the liberties by the state. For others, this would be insufficient. This is particularly true for freedom of media. Democracy, understood in a substantive way, can only be as vibrant as the media which are providing the information necessary for fuelling and maintaining the public discourse.16 This essential function of media for democracy is not adequately reflected in a purely individualistic interpretation as freedom of the media owners and journalists. It is not just a subcategory of free speech, amplified by technical means. It is a different type of rights. Its object is the function that the media render to individual opinion formation and democratic government. Freedom of media is a functional right and protects individual freedom only insofar as the owners and journalists act in accordance with this function.17 The guarantee must therefore extend to the media system as such. To fulfil its democratic function it has to be understood, next to an individual entitlement for media actors, as an institutional guarantee of a free media system. This guarantee requires on the one hand, state abstention from control of the media, on the other hand state action in the interest of an all over media freedom. As a potential foe of 14 See Y Roznai, Unconstitutional Constitutional Amendments (OUP, 2017). 15 See G Cappocia, Defending Democracy (John Hopkins University Press, 2005); M Thiel (ed), The ‘Militant Democracy’ Principle in Modern Democracies (Routledge, 2009). 16 See N Luhmann, Die Realität der Massenmedien, 2nd edn (Westdeutscher Verlag, 1996); C Substein, Democracy and the Problem of Free Speech (Free Press, 1993); J Lichtenberg, Democracy and the Mass Media (CUP, 1990). 17 See D Grimm, ‘Freedom of Media’ in A Stone and F Schauer (eds), The Oxford Handbook of Free Speech (OUP, 2021).

Rule of Law and Democracy  51 media freedom, the state has to refrain from actions that would unduly limit media reporting. As a friend of media freedom, it has to take action in order to ban those menaces that emanate from private actors. This positive duty will usually be fulfilled by legislation. It implies that that the positive dimension of media freedom may require restrictions of the negative dimension, yet only in the interest of a greater overall freedom. However, the importance of fundamental rights is not limited to those rights that are directly connected to the political process. Fundamental rights that do not directly protect political participation, but the private sphere of the citizens, their home, their personal communication, their religious beliefs, their professional activities, their leisure time etc, can also have an influence on democracy. One is not free as a political subject if one is not free as a private person.18 If only political participation were protected against intrusions by the state or pressure by fellow citizens, people could not be free of fear that their political engagement might entail sanctions or disadvantages in the private sphere. The constitutional protection of personal data evolved as a result of this insight. In this sense, one can say that all fundamental rights contribute to democracy. There is, however, still a deeper sense in which the majority rule depends on the recognition of fundamental rights. Where there is a majority, there is also a minority, whose demands and expectations remain unfulfilled in the democratic process. For democracy, it is crucial that they can nevertheless feel included in the democratic society and are willing to obey the law in spite of their disagreement. This willingness is essentially supported by the obligation of the majority to respect, for its part, the political and private rights of the minority and give it the opportunity to prevail with its opinions and demands in the next election. Structural minorities that do not see a chance to ever find attention for their views and interests and are even menaced in their personal way of life are a threat to representative democracy. It would, however, be too narrow to recognise fundamental rights only insofar as they assist and support the democratic process. The majority of fundamental rights are in the first place guaranteed in the interest of individual self-development and selffulfilment, which, in turn, presupposes freedom. These rights are ends in themselves, not means in the service of an external purpose, be it democratic or other. It is in principle up to the individuals if and how they use their freedom. Limitations of that liberty are indispensable because every liberty can be used to the detriment of others or society at large as well as legitimate state interests. But limitations of fundamental rights need a justification that may be derived from the protection of the same liberties of others or from other liberties or interests of society as a whole. Democracy, in turn, appears as the political system that is best compatible with individual freedom. The two complement each other mutually. Democracy fulfils the claim of citizens endowed with political and personal rights to decide directly or indirectly through their elected representatives how they want to be governed and under which laws they want to live. Under conditions of social and ideological pluralism, democratic procedures convey legitimacy on the results. Equal rights establish



18 See

Habermas (n 5) 301 ss.

52  Dieter Grimm conditions under which democracy is able to reach results that are generally acceptable. Thus, individual self-development and collective self-government go hand in hand. In this sense, Habermas can call fundamental rights (and the rule of law, of which they are part) and democracy as co-equal.19 III.  RULE OF LAW’S RELATIONSHIP WITH DEMOCRACY

Like the two basic concepts of democracy, the two concepts of the rule of law share some elements. The fundamental feature of any rule of law concept is that public power is exercised by law and in accordance with law. Exercising public power by law means that wherever the state regulates private behaviour, it has to be done in the form of law. Exercising public authority according to law means that the state uses its power in conformity with the law. Not only the horizontal relationship among private persons, but also the vertical relationship between private persons and the state is subject to law. The requirement of a legal basis for its actions prevents the state from converting power into orders or measures straightaway. Thus, governing under the rule of law is the opposite of arbitrary rule. The notion of law implies a certain degree of generality. Laws differ from individual commands. Individual commands are addressed to a certain individual or group of individuals with regard to a certain existing or imminent situation. It exhausts itself in the act of compliance by the addressees or implementation by the law enforcement agencies. To the contrary, a law or statute is directed to an indefinite number of people and covers an indefinite number of future cases, even cases that were not or could not have been foreseen when the law was adopted. It applies wherever the conditions laid down in the law are given and vis-à-vis everybody who falls under these conditions. Preferences or disadvantages on personal grounds are excluded. Equal treatment under law is an essential element of the rule of law. The first element alone, governing by law, would not be enough to establish the rule of law. It does not sufficiently distinguish a rule of law-abiding system from a dictatorial or totalitarian system. Such systems also rule by law, but the law is used as an instrument to govern, while the state is not willing to submit itself to the law. In the absence of the second element, it is neither guaranteed that the state respects the law that regulates its own behaviour nor that the law which regulates private behaviour is applied equally. Consequently, arbitrariness is not ruled out. The requirement that the state does not only rule by law but also according to law does not only apply to the executive, administrative and judicial agencies of the state. It is also mandatory for the highest organs of the state. The law binds the state as long as it is in force. But compliance with the law cannot be taken for granted. It can hinder politicians from pursuing certain goals or taking certain actions which they find useful or urgent. Compliance with legal norms may have undesirable consequences. Adherence to the law may then appear as empty formalism which thwarts the achievement of substantive justice. A state that overrides legal requirements under such circumstances may even have public opinion on

19 Habermas

(n 5).

Rule of Law and Democracy  53 its side. But it could not claim to respect the rule of law if it is unwilling to comply with the law, even when it is unpopular, inconvenient, or annoying. If certain provisions of the law shall not apply in exceptional situations like a catastrophe or war, the permission must be contained in the law itself, for instance in the form of emergency provisions. If the state wants to remedy an unsatisfactory legal arrangement, it may amend the law for the future, but cannot disregard it now. Once it becomes accepted that there are reasons to ignore the law under exceptional circumstances, it is only a small step away from disregarding the law for all sorts of illegitimate purposes: because it does not correspond to one’s subjective sense of justice; because the outcome in a particular case seems undesirable; because it saves money; because it avoids trouble with those in power; because it helps in the struggle with political opponents or rivals, etc. The rule of law is based on the assumption that legal certainty is an intrinsic value, regardless of whether the outcome of compliance with the law is seen as good or bad, useful or harmful.20 The conditions for such an attitude are not equally favourable in all political systems. The reason lies in a fundamental difference regarding the legitimation of the state. There are states that see themselves in the service of a supra-individual truth or value, be it religious or secular, which antedates the law and claims absolute validity. There are other states which do not identify themselves with a particular truth but acknowledge a plurality of truth claims in society. Here, the place of the absolute truth is taken by individual autonomy, that is, a freedom value. While the latter states derive their legitimacy from a consensus of their populace, the former derive it from that truth. Political rule is legitimate insofar as it maintains the truth. The other states are based not on one single truth that is binding for all, but on the consensus of its citizens as to the conditions of peaceful coexistence despite disagreement about the good and just. For the rule of law this difference is significant, because states that see themselves in the service of an absolute truth have greater difficulties in adhering to rule of law principles than pluralistic ones. They do not view the law as an autonomous system that follows a logic of its own, different from the logic of the political, the economic or the religious system, but develop a purely instrumental relationship to positive law. The law is submitted to the truth. If truth claims conflict with legal requirements, these systems usually give preference to the truth. The application of the law is conditioned on compatibility with the truth. Pluralistic societies with competing ideas of the common good and justice are more prone to accept the rule of law because the law is the product of a political process that follows established rules and can be changed at any time. For a rule of law-bound political system, the regularity of government action, which excludes arbitrariness, is a value in itself, independently of the content of the law, because it makes government actions predictable for those who are affected by them and allows citizens to organise their behaviour in such a way that they do not come into conflict with the state. Rational planning in personal as well as in economic or other professional matters depends on trust in the law. Stabilising expectations has

20 See

A von Arnauld, Rechtssicherheit (Mohr Siebeck, 2006).

54  Dieter Grimm become one of the most important functions of the law.21 If this is an intended effect of the rule of law, it becomes clear that retroactive laws are problematic, just because they submit acts to legal consequences like criminal punishment, which, at the time of the action, were not part of the law so that it was impossible to foresee them and to organise one’s behaviour accordingly. Obviously, the submission of the state to law only makes sense if the law has a regulatory content capable of binding state authorities effectively. This is particularly important in areas where the individual is intensely affected by state actions, such as in criminal or police law. Blank checks to government power cannot develop a binding effect. Neither do laws consisting of vague and open-ended phrases produce sufficient binding force. For this reason, it is meanwhile accepted as part of the rule of law that laws have to be clear enough to allow the addressees to know what to do and what to let. One has to admit, however, that the degree of certainty depends on the subject matter that is regulated. The turn from the liberal state with its limited function to guarantee individual freedom and societal self-regulation via the market to the welfare state and the increasing use of prevention necessarily lowers the standard of legal certainty.22 The formal concept of the rule of law contents itself with these aspects. Its formality consists in that the law as instrument and condition of rule has to be passed in due form in order to develop binding force. The due form includes that the competent organ adopted the law in the prescribed procedure. Likewise, publication of the law is an indispensable formal element of the rule of law, because a secret law does not put its addressees in a position to behave accordingly. For the formal concept, the rule of law is identified with the principle of legality. It is indifferent regarding the content of the law. As such, it corresponds with the formal concept of democracy. All questions of content are left to political determination. The question of whether the law is just or justifiable is irrelevant for a purely formal concept of the rule of law. Understood in a formal sense, the rule of law does not depend on any democratic element. It is compatible with the majority principle, but can exist independently of democracy. As a matter of fact, the rule of law antedated democracy and co-existed with non-democratic systems, provided that they were willing to submit political power to legal rules. In Europe, this was already the case in the late eighteenth century when some absolute monarchs under the influence of the enlightenment agreed to rule according to law, while maintaining the exclusive power to make the law. Later on, when they granted constitutions and thereby moved away from absolutism, the rule of law was entrenched on a constitutional level. It could no longer be revoked unilaterally. Still, these constitutions were not based on popular sovereignty, so that the rule of law owed its existence to the will of the ruler to bind himself.

21 See N Luhmann, ‘Die Funktion des Rechts: Erwartungssicherheit oder Verhaltenssteuerung?’ in N Luhmann, Ausdifferenzierung des Rechts (Suhrkamp, 1981) 73; N Luhmann, Das Recht der Gesellschaft (Suhrkamp, 1993) 131 ss. 22 See D Grimm (ed), Wachsende Staatsaufgaben – sinkende Steuerungsfähigkeit des Rechts (Nomos, 1990).

Rule of Law and Democracy  55 Even in its formal understanding, the rule of law is no small achievement, because it excludes arbitrary government. But it is a limited achievement, because all questions regarding the content of the law are left open. One of these questions arises because the state, which is subject to the law, is at the same time the source of the law. In the absence of further rules, it is consequently up to the state to decide when and to what extent it will be bound. Where a law is lacking, no constraints apply. The state can exploit such gaps for all sorts of political purposes. From a formal point of view, this would not be objectionable. For a more substantive understanding, the rule of law means also that the state may pursue certain goals or use certain means to reach these goals only on the basis of a statutory authorisation – the so-called reservation of the law. The reservation of the law might look like an additional formal requirement, but it is of substantive nature because the criteria for determining which type of state action requires an authorisation by law are necessarily substantive. This was already recognised by the pre-democratic constitutions of the nineteenth century. They stipulated that any encroachment upon the citizens’ liberty and property required a basis in law. Although these constitutions were not based on democracy as legitimating principle, they accepted a democratic element insofar as elected Parliaments existed without whose consent no law could be passed. As a consequence, limitations of fundamental rights were possible only if the representatives of the people had agreed to them in a law. This is now generally accepted as part of the rule of law. Any state act that prohibits, limits or burdens the use of a fundamental right requires statutory authorisation. But even if this is recognised, the protective value of the rule of law remains limited as long as the content of the law is left to political discretion. Under such conditions, the rule of law is compatible with oppressive, exploitative and discriminatory legislation. This weakness was already well known in the beginnings of constitutionalism. But the liberal advocates of the early constitutions found the justness of the law sufficiently guaranteed through the consent of the elected representatives in matters of liberty and property. It was assumed that the holders of fundamental rights would not give their consent to laws that restricted individual liberties unduly. Thus, the form of a parliamentary law was the means to protect the substantive values on which the system was built. This assumption has been refuted by history. In many countries with constitutions of the nineteenth century, whether democratic or pre-democratic, the laws allowed the exploitation of the working class, based on the liberal principles of freedom of contract and freedom of property. This could happen because the election of a representative body was in most cases not based on universal suffrage, but privileged the wealthy and the educated classes, whereas the interests of the unpropertied and uneducated classes were not represented. But the full consequences of this narrowed concept of the rule of law came to light only through the decay of the liberal legal culture during the totalitarian regimes of the twentieth century. Experiencing first hand that the law can also become a tool for gross injustice gave the final incentive to a turn from the formal to a material understanding of the rule of law. A state devoted to the rule of law in a substantive sense is therefore not only one in which public power is submitted to law, whatever its content may be, but one in

56  Dieter Grimm which the law reflects certain notions of justice. Obviously everything then depends on the question of what notions of justice guide the legislative process. Here again, the distinction between political systems based on a pre-existing truth or an absolute value and political systems based on individual freedom matters. In the former systems, the rule of law, if accepted at all, applies under the reservation that the law is compatible with the pre-determined truth. In the latter systems, the rule of law applies unconditionally. Consequently, criteria for the justness of the law can only be derived from the law itself, yet from a law that ranks higher than statutory law, namely the constitution. The modern constitutional state tries to guarantee the justness of the law by a number of substantive principles, most of them part of the bill of rights. This presupposes, however, that fundamental rights are binding for the legislature. This was not always so. Throughout the nineteenth century and deeply into the twentieth century, fundamental rights, although being entrenched in the constitutions, had no impact on legislation. They could be limited by law, and from this it was concluded that they were not above but below the law. They were thus reduced to prohibitions for the executive to interfere with fundamental rights without a basis in law. The legislature was only bound by the formal provisions of the constitution, not by the substantive principles. It needed the experience that formal provisions alone were not sufficient to prevent evident injustice in the form of law to give up this doctrine. Nowadays, it is constitutional standard that the legislature is bound by fundamental rights. These rights were primarily enacted in the interest of individual freedom vis-à-vis the state. As such they were subjective rights or individual entitlements with vertical application and negative effect. They prohibited certain state actions and were consequently fulfilled by omitting these acts. The principle of proportionality strengthened this negative or defensive effect considerably. Meanwhile, it carries the main burden of rights protection in many legal systems and has become an integral part of the rule of law.23 Over time, the scope of protection was gradually expanded beyond the classical meaning through the jurisprudence of constitutional courts or courts with the power of judicial review. In the course of this development, each of the three classical elements of rights – subjective, vertical, negative – was complemented by a new element.24 The first step led to an understanding of fundamental rights, not only as subjective rights, but also as objective principles or legal expressions of values. As such they form the highest guidelines for the political and social order. This understanding served as basis for the conclusion that their impact was not limited to the vertical dimension. Rather, a horizontal dimension was added according to which their

23 See A Barak, Proportionality (CUP, 2012); M Cohen Elya and I Porat, Proportionality and Constitutional Culture (CUP, 2013); G Huscraft, BW Miller and G Webber (eds), Proportionality and the Rule of Law (CUP, 2014). 24 The German Constitutional Court was leading in this respect, see D Robertson, The Judge as Political Theorist (Princeton University Press, 2010) 11, 40. For an overview see D Grimm, ‘The role of fundamental rights after sixty-five years of constitutional jurisprudence in Germany’ (2015) 13 I-CON 9; D Grimm, ‘Return to the Traditional Understanding of Fundamental Rights?’ in Grimm (n 6) 183.

Rule of Law and Democracy  57 influence extended also to private law relationships. If the application of private law affected a constitutionally guaranteed freedom, it had to be interpreted in the light of this right. Finally, the negative effect was accompanied by a positive effect which obliged the state to take action when the freedom guaranteed by a fundamental right was not menaced by state action, but by actions of private actors. These menaces have increased considerably with the unparalleled progress in science and technology and the commercial use of its results. They can only be mitigated by the state. But as they grow out of private activities that are themselves protected by fundamental rights, laws are needed to address the risks. If the legislature were permitted to remain passive in this conflict of constitutional rights, the most assertive interests would tend to prevail over the interests of those in need of protection. In a similar vein, it is meanwhile accepted that the guarantee of fundamental rights extends also to those material means without which a liberty would be an empty shell. Taken together, it is a substantive understanding of individual freedom after the experience that a purely formal understanding was insufficient to reach the ultimate end of rights, namely individual autonomy. However, fundamental rights alone are not a sufficient guarantee of the justness of the law. They draw limits to and impose directives on the legislature. But they do not furnish a blueprint that the legislature simply has to implement. Society cannot be ordered by a handful of rather general and abstract principles. Laws are indispensable and fundamental rights leave room for legislative discretion. The question of which law is just or serves a society best will always be contested in a pluralist society. Therefore, the law draws its legitimacy in addition to the compatibility with fundamental rights from the democratic process, in which those who are submitted to the law participate in its formation. For this reason, democracy must be understood as a condition of a materially understood rule of law. Under the rule of law, the law is binding for the state. But the law does not enforce itself. It depends on the willingness of its addressees to follow it, and, if the willingness is missing, on enforcement mechanisms. This holds true not only for autocratic or theocratic regimes, but also for pluralistic societies and democratic states. Therefore, it is of paramount importance to ask what the state organs have to expect when they choose to ignore the law. If individuals act illegally the state may intervene with its police and judicial powers. But if the state itself breaks the law, there is no higher authority to enforce the law. The rule of law is therefore dependent on the existence of devices within the structure of the state, which monitor the lawfulness of government actions. In common law countries, these devices have always existed. The executive could be sued in court. In countries with an absolutist past, the state was able to evade this kind of judicial scrutiny. It took some efforts until the continental judiciary regained the power to review the legality of state acts in the nineteenth century.25 In most countries, the result of these efforts was not the expansion of the competencies of the ordinary courts like

25 See A Gaillet, L’individu contre l’Etat (Dalloz, 2012); A Gaillet, ‘Le Conseil d’Etat français: histoire d’une exportation difficile en Europe’ (2013) 26 Revue Française de Droit Administratif 793.

58  Dieter Grimm in the common law model, but the establishment of special administrative courts, and took even more time until their jurisdiction became comprehensive. There are, however, still many countries in which citizens lack the means to challenge government acts that affect them – on the highest as well as on the lowest level. In states that derive their legitimacy from an absolute truth rather than from consensus, the lack of administrative justice tends to be the rule. As all experience teaches us, the rule of law is on shaky ground without the possibility to have administrative acts reviewed by courts. If the rule of law is not defined in formal but in substantive terms, it does not exhaust itself in the legality of the administration. Rather, the legislature, too, is submitted to the legal constraints that are laid down in the constitution. However, the adherence of the legislature to the constitution cannot be determined by administrative courts. If the legislature should not be allowed to ignore the constitution with impunity, its actions must also be subject to judicial review. In the US, this conclusion was already drawn soon after the constitution had been adopted. In the rest of the world, this insight has found gradual acceptance only after bitter experiences with blatantly unjust regimes. The second half of the twentieth century saw the triumph of constitutional adjudication, with judicial review of legislation at its core.26 Today, judicial review is widely regarded as an integral component of the rule of law. It is its apex, as one can read from time to time. But from the very beginning, there have also been concerns about the compatibility of judicial review with democracy, especially in the country where judicial review was invented, the US.27 As a matter of fact, it is a consequence of judicial review that judges can declare majority decisions of the elected representatives of the people null and void if they find them incompatible with the constitution. If fundamental rights are attributed, not only a negative, but also a positive function, it may even occur that the legislature is compelled to do something that it deliberately wanted to avoid. In a formal understanding of democracy, judicial review would be acceptable, if at all, only with regard to the organisational and procedural requirements for legislation. Submitting legislation to a content-based control would mean that it is not the people who rule through their elected representatives, but unelected and not accountable judges. However, it would not be difficult to defend judicial review if it were not more than applying those limits for government, which the people themselves have laid down in the constitution. But many constitutional provisions, in particular the guiding principles and fundamental rights, are rather vague and open-ended. Their

26 See C Neal Tate and T Vallinder (eds), The Global Expansion of Judicial Review (NYU Press, 1995); M de Visser, Constitutional Review in Europe (Hart Publishing, 2014); W Sadurski, Rights Before Courts. A Study of Constitutional Courts in Postcommunist States of Central and Eastern Europe (Springer, 2005); S Gardbaum, The New Commonwealth Model of Constitutionalism (CUP, 2013); R Sieder, L Schjolden and A Angell (eds), The Judicialization of Politics in Latin America (Palgrave, 2005); T Ginsburg, Judicial Review in New Democracies. Constitutional Courts on Asian Cases (CUP, 2003); AHY Chen, Constitutional Courts in Asia (CUP, 2018); CM Fombad (ed), Constitutional Adjudication in Africa (OUP, 2017). 27 See B Friedman, ‘The Birth of an American Obsession: A History of the Countermajoritarian Difficulty’ (2012) 112 Yale L.J. 153.

Rule of Law and Democracy  59 application to cases is not fully determined by the text of the constitution. There is a gap between the abstract and general norms of the constitution and the concrete and individual cases, which has to be bridged by interpretation. However, interpretation is not just discovering a meaning that has been deposited in the text of the norm from the moment of its adoption. Rather, their meaning with regard to a specific case is to a certain extent created by the judges in the process of interpretation. However, if done correctly, this is a legal, not a political operation.28 Therefore, the democratic acceptability of judicial review depends on the character of constitutional interpretation. Is it a political or a legal operation? This, in turn, depends on the nature of the viewpoints and arguments permissible in constitutional interpretation. If it is done in a responsible way, only legal arguments may be used to determine the meaning of a constitutional provision with regard to a concrete case. It may be debatable what counts as a legal argument and what does not, but this is an intra-legal debate, and there is no doubt that political or, for that reason, economic or religious arguments are unacceptable. The argument of the critical legal studies movement and its contemporary followers that legal arguments serve only as an ex-post camouflage of what is really going on, rejects the relative autonomy of the legal system and, in spite of its asserted realism, does not draw a realistic picture of judicial behaviour.29 If this is accepted, judicial review can be reconciled with democracy, provided that democracy is understood in a substantive way. What remains, however, is a democratic risk. This risk exists because every expansion of the scope and function of fundamental rights by way of interpretation limits the discretion of the legislature and shifts the balance from the democratically legitimised and accountable branches of government to the judiciary. The more constitutional law courts produce, the less space remains for the democratic process. Thus, the apex of the rule of law can turn into a threat to democracy. But there is also a rule of law risk if judicial review were absent. When ordinary law is violated, be it by citizens, or be it by the administration, there is a whole apparatus with the power to enforce the law. In the case of constitutional law, this is different. Constitutional law applies to the highest authorities of the state. Hence, the addressee of the law and the guarantor of the law are identical. This explains the specific vulnerability of constitutional law compared to ordinary law. There is ample historical evidence that fundamental rights play no significant role in the absence of constitutional adjudication. If they are interpreted as positive rights that oblige the legislature to take action, it is particularly easy to resist a court ruling by simply remaining passive. However, this risk seems to weigh heavier, whereas the democratic risk can be mitigated if it is agreed that the democratic principle puts limits on judicial review, albeit they are difficult to transform into precise rules. Ultimately, the political power to amend the constitution serves as a counterweight against constitutional courts that overstep their boundaries.

28 See D Grimm, ‘What Exactly Is Political about Constitutional Adjudication?’ in C Landfried (ed), Judicial Power (CUP, 2019) 307. 29 See Robertson (n 24) 13–20; Grimm (n 28).

60  Dieter Grimm However, the judiciary will not be able to render its service if courts are not independent, but integrated in the political chain of command.30 It is an essential part of the rule of law that laws, once they are enacted, are shielded from political control and obtain an autonomous status, that is: that they will be interpreted and applied according to legal, not political criteria. This is the only way to guarantee that the political branches are bound by law. The guarantee for this is the separation of powers.31 Separation of powers is more than a distribution of public functions among various governmental departments. It adds the independence of each power within its functional area to this division. Again, that is difficult to accept for countries that are committed to an absolute truth. Absolute truths demand hierarchy; separation of powers limits hierarchy. As this shows, the rule of law as we understand it now is composed of several layers.32 It is not a matter of all or nothing, but of more or less. Not all levels were achieved at the outset. Many were only won after bitter setbacks and hard struggles. Today these levels still differ from country to country. Some adopt it, not because of its intrinsic value, but as a means for other purposes, like the attraction of foreign investment. Yet, each additional step means a step forward compared to the previous level. Even the minimum concept of making the law binding on the administration – irrespective of the content of the law – is progress compared to arbitrary rule. However, the realisation of the rule of law becomes more demanding with each additional level and will meet with resistance, often in the name of democracy. IV.  NEW THREATS

It may now have become clearer why the relationship between the two notions is characterised by tension and interdependence. The degrees vary with the concept of the two principles. While in a formal understanding the rule of law can exist independently of democracy, even a formal understanding of democracy depends on the rule of law at least insofar as the democratically formed will of the legislature has to be followed by those who have to execute it. Obedience by the administration cannot be guaranteed by democratic means. It needs the rule of law, whereas a more substantive understanding of democracy implies necessarily the rule of law. Vice versa, a substantive understanding of the rule of law implies democratic law-making as a necessary element of its legitimacy.33 While, after the seminal changes of the year 1989, it seemed as if democracy and the rule of law had established themselves as a universal model for the organisation

30 See eg J Ferejohn and L Kramer, Judicial Independence in a Democracy (CUP, 2006); S Shetreet and C Fiorsyth (eds), The Culture of Judicial Independence (Martinus Nijhoff, 2011). 31 See C Möllers, The Three Branches (OUP, 2013). 32 See D Grimm, Stufen der Rechtsstaatlichkeit, Juristenzeitung (Mohr Siebeck, 2009) 596 (English version in Dirk Ehlers e.a. (eds), Constitutionalism and Good Governance (Nomos, 2014) 141; also in (2011) 1 European-Asian Journal of Law and Governance 5. 33 See J Habermas, Faktizität und Geltung (Suhrkamp, 1992), esp 166 ss; J Habermas, ‘Inklusioin – Einbeziehen oder Einschließen? Zum Verhältnis von Nation, Rechtsstaat und Demokratie’ in Habermas, Die Einbeziehung des Anderen (n 5) 154; Habermas, ‘Zusammenhang’ (n 5) 293.

Rule of Law and Democracy  61 and legitimation of public authority, the beginning of the twenty-first century sees a backlash in many parts of the world. Political parties and populist movements turn away from pluralist democracy and the substantive rule of law concept. Democracy is redefined as purely majoritarian or identitarian. The rule of law is regarded as an impediment to the implementation of the alternative model of democracy. The historical experience that had led to the concept of democracy and the rule of law described here is losing plausibility. The price is paid by those values that inspired the achievement of constitutionalism from its very beginning until today.

62

5 EU Rule of Law: The State of Play Following the Debates Surrounding the 2019 Commission’s Communication BARBARA GRABOWSKA-MOROZ AND DIMITRY VLADIMIROVICH KOCHENOV*

I. INTRODUCTION

I

n this chapter we analyse the state of the debate on the Rule of Law ­challenges and developments in the European Union following the release of the 2019 Commission Communication ‘Strengthening the Rule of Law: A Blueprint for Action’1 and explain why the shortsighted approach of the Commission gives rise to worry. All the boxes seemed to be ticked during the ‘discussion’ exercise; yet the outcome has seemingly brought the Commission nowhere. This latest round of the debate on the Rule of Law in the EU was originally initiated in April 2019 when the Commission published its Communication ‘Further strengthening the Rule of Law within the Union. State of play and possible next steps’2 and concluded in July 2019 with the publication of the blueprint for future Rule of Law action. Discussion took place at the time when the EU is facing the most serious Rule of Law crisis since its founding.3 This crisis has been tackled with recourse to Treaty

* Both at CEU Democracy Institute, Budapest. This research was carried out as part of the RECONNECT project, which has received funding from the European Union’s Horizon 2020 research and innovation programme under grant agreement No 770142 and further develops the analysis offered in D Kochenov, ‘Elephants in the room: The European Commission’s 2019 Communication on the Rule of Law’ (2019) 11 Hague Journal on the Rule of Law 423. The authors are grateful to Emma Schulte for her assistance. 1 European Commission, ‘Strengthening the Rule of Law within the Union. A blueprint for action’ (Communication) COM (2019) 343 final. 2 European Commission, ‘Further strengthening the Rule of Law within the Union: State of play and possible next steps’ (Communication) COM (2019) 163 final. 3 KL Scheppele, D Kochenov and B Grabowska-Moroz, ‘EU Vlaues Are Law, after All’ (2020) 39 Yearbook of European Law 1; M Smith, ‘Staring into the abyss: A crisis of the Rule of Law in the EU’ (2019) 25 European Law Journal 561; D Adamski, ‘The social contract of democratic backsliding in the “new EU” countries’ (2019) 56 Common Market Law Review 623; L Pech and KL Scheppele, ‘Illiberalism within: Rule of law backsliding in the EU’ (2017) 19 Cambridge Yearbook of European Legal Studies 3.

64  Barbara Grabowska-Moroz and Dimitry Vladimirovich Kochenov instruments such as Article 7 TEU as well as via the route of political innovation4 and, crucially, in courts.5 Article 7 TEU predictably showed numerous shortcomings – mainly political ones – with respect to enforcing the EU values.6 Despite milestone CJEU rulings regarding the supranational Court’s competence to engage with the independence of judiciary7 there is a sense that those might not be sufficient to solve the problem of Rule of Law backsliding – intentional demolition of the separation of powers in Member States by those in power.8 The Commission’s Communications and public consultations demonstrate what the available options to tackle the ongoing crisis are in the eyes of the Commission and what tools could be deployed to make the EU’s response more effective. A clear vision of how to get out of the current impasse is, however, missing entirely: the Commission did not provide a convincing strategy on how to tackle constitutional capture plaguing several Member States. II.  THE RULE OF LAW DEBATE OF THE COMMISSION – SCOPE, TOPIC, OUTCOME

In April 2019 the European Commission published a communication ‘Further strengthening the Rule of Law within the Union: State of play and possible next steps.’9 The Commission acknowledged that ‘the Union’s fundamental values and principles, including the Rule of Law, are under pressure and need particular attention.’10 This view had been expressed already in 2013 by Commissioner Vivienne Reding, who stated that ‘the testing moment for the Rule of Law always comes in times of crisis’.11 She referred to three situations perceived as Rule of Law

4 D Kochenov and L Pech, ‘Better late than never: On the European Commission’s Rule of Law Framework and its first activation’ (2016) 54 Journal of Common Market Studies 1062; E Hirsch Ballin, ‘Mutual trust. The virtue of reciprocity – Strengthening the acceptance of the Rule of Law through peer review’ in C Closa and D Kochenov (eds), Reinforcing Rule of Law Oversight in the EU (CUP, 2016); for an overview, see C Closa, D Kochenov and JHH Weiler, ‘Reinforcing the Rule of Law oversight in the European Union’ (2014) EUI RSCAS Research Paper 2014/25. 5 L Pech and D Kochenov, ‘Respect for the Rule of Law in the Case Law of the Court of Justice’, SIEPS Report (2021); TT Koncewicz, ‘The supranational Rule of Law as first principle of the European public space – On the Journey in ever closer union among the peoples of Europe in flux’ (2020) 5 Palestra 168; P Van Elsuwege and F Grimmelprez, ‘Protecting the Rule of Law in the EU legal order: A constitutional role for the Court of Justice’ (2020) 16 European Constitutional Law Review 8; C Rizcallah and V Davio, ‘L’article 19 du Traité sur l’Union européenne: sesame de l’Union de droit’ (2020) 122 Quarterly Human Rights Review 156; D Kochenov and P Bárd, ‘The last soldier standing? Courts versus politicians and the Rule of Law crisis in the new Member States of the EU’ (2019) 1 European Yearbook of Constitutional Law 243. 6 D Kochenov, ‘Article  7 TEU: A Commentary on a much talked-about “dead” provision’ (2018) 38 Polish Yearbook of International Law 165. 7 Case C-64/16 Associação Sindical dos Juízes Portugueses v Tribunal de Contas [2018] 3 CMLR 16; Case 619/18 Commission v Poland [2020] 1 CMLR 6. cf. S Adam and P Van Elsuwege, ‘L’exigence d’indépendance du juge, paradigm de l’Union européenne comme union de droit’ (2018) 9 Journal de droit européen 334; L Pech and S Platon, ‘Judicial independence under threat: The Court of Justice to the rescue in the ASJP Case’ (2018) 55 Common Market Law Review 1836. 8 Pech and Scheppele (n 3). 9 Commission (n 2). 10 ibid 2. 11 V Reding, ‘Speech: The EU and the Rule of Law – What next?’ (4 September 2013) at https://ec.europa. eu/commission/presscorner/detail/en/SPEECH_13_677.

Debates Surrounding the 2019 Commission’s Communication  65 crises – in France, Hungary and Romania – which ‘quickly took a systemic dimension and revealed systemic Rule of Law problems.’12 As she stated at that time ‘the Commission has been rather successful’ in dealing with those cases. Despite that optimism and the new ‘pre-Article 7’ mechanism introduced in 2014,13 the situation has deteriorated significantly since 2014 and the 2019 Communication announced that it aimed ‘to enrich the debate on further strengthening the Rule of Law within the Union.’14 The Commission confirmed that there still is a problem with ‘the ability of the Union to address’ the Rule of Law crisis and also underlined that solving this issue is a matter of trust.15 As the situation with the Rule of Law in the captured states deteriorated with increasing pace, the Commission’s Communication offered three possible avenues for reaching possible solutions, focusing on the triad of: promotion, prevention and response. The Commission invited stakeholders to submit their input on how to deal with the crisis of the Rule of Law in the EU. As a result, more than 60 contributions have been received (from Member States, EU institutions and bodies, international organisations and political actors, the judiciary and judicial networks, civil society organisations, academia and business associations).16 On the one hand, the Open Society European Policy Institute underlined that the debate initiated by the Commission was not part of formal open consultations but informal ones with targeted outreach to key stakeholders.17 On the other hand, the government of Poland expressed doubts regarding consultations and their scope suggesting that they might not bring ‘desired, viable results’ questioning ‘whether the proposals would be legally applicable in the EU legal environment.’18 Similar criticism can be found in the input from the government of Hungary, which stated that ‘reliance on opinions of external experts and non-governmental institutions raises the question of accountability and transparency’ without providing analysis if those would be correct or not. The opposite view of the European Commission’s initiative was presented by Slovakia, stating that ‘Such transparent and constructive approach has the potential to path the way towards proper setting of the new mechanism on the Rule of Law.’ Reactions to the Commission’s consultation revealed obvious pronounced divisions between the Member States on the issue of the Rule of Law. Indeed, the Member States that provided their input to the Commission were divided into two 12 ibid. 13 European Commission, ‘A new EU Framework to strengthen the Rule of Law’ (Communication) COM (2014) 158 final; D Kochenov and L. Pech ‘Monitoring and enforcement of the Rule of Law in the European Union: Rhetoric and reality’ (2015) 11 European Constitutional Law Review 512. 14 Commission (n 10). 15 For a magisterial treatment of this concept in EU law, see C Rizcallah, Le principe de confiance mutuelle en droit de l’Union européenne (Larcier, 2020). 16 Submissions available to the public were published at https://ec.europa.eu/info/publications/ stakeholder-contributions_en. 17 ‘This appears at odds with the Commission’s commitment under the Better Regulation Agenda to design EU policies and laws transparently, with evidence, and backed up by the views of citizens and stakeholders’ (Open Society European Institute, ‘Communication from the European Commission on further strengthening the Rule of Law within the Union: state of play and possible next steps. Contribution by the Open Society European Policy Institute’ (June 2019) 15). 18 ‘Given the above, we express our doubt whether the form of a communication and an open invitation to express thoughts on the Rule of Law framework addressed to a large group of governmental and non-governmental actors will bring desired, viable results and whether the proposals would be legally applicable in the EU legal environment.’ (‘Poland’s contribution’ (17 July 2019) 1).

66  Barbara Grabowska-Moroz and Dimitry Vladimirovich Kochenov groups – those supporting further strengthening of the EU’s response to the Rule of Law crisis (including Sweden, Finland, and the Netherlands) and those which expressed their deep scepticism (the Member States which face the on-going Article 7 TEU procedure against them, that is, Poland and Hungary). Especially the criticism expressed by the government of Hungary was of a fundamental nature – the government did not agree with the Commission’s diagnosis (which was not challenged by other stakeholders) that the Rule of Law is under pressure in the EU and that this issue needs particular attention. Instead, according to Hungary, the ‘Rule of Law is increasingly used as a tool of political leverage’. Instead of focusing on the national level, the Hungarian Government expressed a belief in the general need to strengthen and uphold the Rule of Law in the activities of EU institutions.19 The opposite position was defended by the Swedish parliamentary committee which underlined that ‘the broader discussion on further strengthening the Rule of Law initiated by the Commission is urgent’. Much more precise in this respect were recommendations presented by the International Commission of Jurists, which underlined that the EU institutions must enhance transparency and stakeholder participation, including in legislative proceedings and access to information.20 An interesting example of complete denial that any Rule of Law debate is needed was the submission of the Hungarian organisation Center for Fundamental Rights, advancing the arguments similar to those supported by the Hungarian Government. First of all, according to the Center’s submission, ‘the debate isn’t legal in nature but political and ideological’ and represents a ‘clash of worldviews’. Secondly, they argued that ‘sufficient safeguards for the principle of the Rule of Law were created by the Hungarian National Assembly’.21 Thirdly, ‘disregarding the national sovereignty and constitutional identities of Member States, the Commission is trying to create an EU level control over the application of the principle of the Rule of Law within the Member States.’22 Finally, the Center pointed to the existence of ‘more urgent issues’ such as the migration crisis. The EU should also ‘take actions regarding yellow vest movement in France, or the police abuse evident in the reaction to the Catalan independence referendum’.23 This was, however, the only example of a submission which expressed complete denial that a debate is needed. Other stakeholders almost fully agreed that such debate in the EU is required. The second fundamental issue which arises from the analysis of the submissions initiated by the Commission in April 2019 points to the differences regarding seemingly the most basic issue – the definition of the Rule of Law. According to the

19 State Secretariat for EU Relations of the Prime Minister’s Office, ‘Position paper of the State Secretariat for EU Relations of the Prime Minister’s Office, Hungary on the Consultation about the Communication of the European Commission on “Further strengthening the Rule of Law within the Union”’ (28 May 2019). 20 International Commission of Jurists, ‘Submission by the International Commission of Jurists to the European Commission’s Consultation on “Further Strengthening the Rule of Law Within the Union”’ (June 2019) 5. 21 Center for Fundamental Rights, ‘Remarks on the Press Release on the Rule of Law circulated by the European Commission’ (4 June 2019) 2. 22 ibid. 23 ibid 6.

Debates Surrounding the 2019 Commission’s Communication  67 Commission, the Rule of Law is ‘well-defined in its core meaning’.24 The leading scholarly accounts seem to support this view,25 at least in part, as far as the internal definition of the concept goes.26 The Commission usually follows the Venice Commission’s main findings in this respect27 and states that the Rule of Law includes, among others, ‘principles such as legality, implying a transparent, accountable, democratic and pluralistic process for enacting laws; legal certainty; prohibiting the arbitrary exercise of executive power; effective judicial protection by independent and impartial courts, effective judicial review including respect for fundamental rights; separation of powers; and equality before the law.’28 Probably not surprisingly, the harshest criticism of this universal definition came from a Hungarian organisation – Centre for Fundamental Rights –, which, first of all, found that the Rule of Law is a ‘hard-to-define, malleable concept’, which is of course true, but not entirely, given the clarity shaped by the Venice Commission, and, secondly, it found it ‘worrying’, when ‘in the absence of a single, detailed definition it is possible to discriminate against certain Member States on the basis of the Rule of Law, considering political interests only.’ According to the Hungarian Government it is national institutions that shape the content of the Rule of Law.29 Such an approach would suggest the requirement of acceptance of different Rule of Law definitions in different Member States, which could sit uneasily, at least as far as the crucial essence of all the EU’s values goes, with the wording and the spirit of Article 2 TEU.30 The International Bar Association underlined that in the case of the Rule of Law, content of the laws matters, they must for instance protect fundamental rights. So there are of course broader versions of the definition than the one provided by the Commission. Also the International Commission of Jurists underlined that the Rule of Law is ‘inextricably linked to and interdependent with protection of human rights’.31 Narrower definitions, however, are not easily available, which is not surprising. So the Council of Europe also underlined the role of the judiciary and national human rights institutions as the main necessary condition for the Rule of Law.32 The broadest definition, however, was provided by the European Trade Union Confederation which underlined that ensuring the Rule of Law in the EU includes enforcement of fundamental social 24 Commission (n 2) 1. 25 L Pech, ‘The Rule of Law as a constitutional principle of the European Union’ (2009) Jean Monnet Working Paper Series No 4/2009; L Pech and J Grogon, ‘Meaning and Scope of the EU Rule of Law’ (2020) RECONNECT Deliverable 7.2. 26 L Pech, ‘Promoting the Rule of Law abroad: On the EU’s limited contribution to the shaping of an international understanding of the Rule of Law’ in D Kochenov and F Amtenbrink (eds), The European Union’s Shaping of the International Legal Order (CUP, 2013). 27 Rule of Law Checklist, adopted by the Venice Commission at its 106th Plenary Session (Venice, 11–12 March 2016), CDL-AD(2016)007-e. 28 Commission (n 2) 1. 29 State Secretariat for EU Relations of the Prime Minister’s Office (n 19). 30 M Klamert and D Kochenov, ‘Article 2’ in M Kellerbauer, M Klamert, and J Tomkin (eds), The EU Treaties and the Charter of Fundamental Rights. A Commentary (OUP, 2019). 31 The ICJ referred to the ‘ICJ Tunis Declaration on Reinforcing the Rule of Law and Human Rights’ (March 2019) available at www.icj.org/wp-content/uploads/2019/04/Universal-ICJ-The-TunisDeclaration-Advocacy-2019-ENG.pdf. 32 Council of Europe, ‘Council of Europe’s secretariat comment to the Communication from the Commission on Further strengthening the Rule of Law within the Union State of play and possible next steps’ 2019.

68  Barbara Grabowska-Moroz and Dimitry Vladimirovich Kochenov rights. Despite all the differences regarding understanding of the Rule of Law, most of the stakeholders found that the April communication was needed due to the ongoing Rule of Law crisis, where an effective solution still has not been adopted. How broad the definition of the Rule of Law should be in the EU context was, ultimately, not an issue, given the clarity of the position adopted by the Venice Commission. III.  JULY 2019 COMMUNICATION

The July 2019 press release ‘Initiative to strengthen the Rule of Law in the EU’, published on the Commission’s website, informed the public that the Commission ‘has set out concrete actions to strengthen the Union’s capacity to promote and uphold the Rule of Law’. The Communication resulting from the stakeholders’ submissions underlined that it sets out ‘actions for the short and medium term’.33 The Communication’s findings were supplemented with the results of a Eurobarometer survey undertaken by the Commission in all Member States, among more than 27,000 respondents. The principle of the Rule of Law was divided into 17 sub-principles which were further grouped into three areas: 1. ‘Legality, legal certainty, equality before the law, separation of powers’ (equality before the law, clarity and stability of law, ease in following how parliament adopts laws, lawmakers act in public interest, independent controls of law). 2. ‘Prohibition of arbitrariness and penalties for corruption’ (clarity of public authorities’ decisions, independent review of public authorities’ decisions, unbiased decisions of public authorities, making decisions in public interest, acting of corruption, codes of ethics for politicians). 3. Effective judicial protection by independent courts (access to an independent court, length or cost of court proceedings, independence of judges, the proper investigation of crimes, respect for and application of court rulings, codes of conduct of politicians).34 The above definition of the Rule of Law is much more detailed compared with the findings of the Venice Commission or the Commission’s April 2019 Communication. The survey was further supplemented with questions about media and civil society. The Eurobarometer report shows that 89 per cent of respondents considered it important or even essential that all EU Member States respect the core EU values, including fundamental rights, the Rule of Law and democracy. However, the majority of respondents do not feel sufficiently informed about the EU’s fundamental values.35 The July Communication follows the structure offered in the Communication published by the Commission in April 2019 and analyses the possible actions in three areas: promotion, prevention and response. Each section is summarised with conclusions divided into two groups: action which will be taken by the Commission and recommendations addressed to other institutions.



33 Commission

(n 1) 2. of law, Report, Special Eurobarometer 489 (July 2019) 3-4. 35 ibid 10. 34 Rule

Debates Surrounding the 2019 Commission’s Communication  69 A. Promotion The European Commission identified two main gaps regarding the Rule of Law which need to be fulfilled within the ‘promotion’ part. Those include the lack of information and limited general public knowledge concerning the current challenges to the Rule of Law.36 Numerous stakeholders referred to ‘Rule of Law culture’.37 The International Commission of Jurists presented a broad stance on this issue, arguing that ‘legal and institutional safeguards for the Rule of Law amount to little without people who are committed to making their protection a reality’.38 The European Trade Union Confederation referred to a ‘Rule of Law society’, which was confirmed by the Commission stating that ‘the Rule of Law has a direct impact on the life of every citizen’.39 i.  Civil Society and Media Many of the contributions underlined a need to support (ie, financially) civil society.40 The Communication underlined in this respect the role of the future Rights and Values programme, which needs to be accepted by the EP and Council.41 Contributions suggested further steps such as introducing a kind of ‘civil conditionality’, meaning to ‘link any strategy to strengthen the Rule of Law to the development of an enabling civic space in Europe’.42 Furthermore, it was suggested to establish a ‘rapid response system’, allowing the detection of civic space and Rule of Law breaches. Such solutions have not been implemented, however, into the Communication. The Commission expressed its promise to ‘continue to pay special attention to attempts to pressurize civil society and independent media and further support their work’.43 The cases of Hungarian Lex-NGO44 and Lex-CEU45 suggest that this ‘continuation’ requires further improvement.46 The former, decided in June 2020, showed that 36 Commission (n 1) 5. 37 Dutch Ministry of Foreign Affairs, ‘Commission Communication 3 April 2019 – Rule of law, Input from Netherlands’ (2 July 2019) 1; Civil Liberties Union for Europe, ‘A Response to the Commission Communication on further strengthening the Rule of Law within the Union’ (June 2019) 5. 38 International Commission of Jurists (n 20). 39 European Trade Union Confederation, ‘ETUC comments on Commission Communication on “Further strengthening the Rule of Law within the Union. State of Play and possible next steps” (COM(2019) 163 final)’ (24 June 2019) 1. 40 European Humanist Federation; Civil Society Europe; Helsinki Foundation for Human Rights and Hungarian Helsinki Committee; International Commission of Jurists; Open Society European Policy Institute; Civil Liberties Union for Europe. 41 European Commission, ‘Proposal for a Regulation of the European Parliament and of the Council establishing the Rights and Values programme’ (Proposal) COM (2018) 383 final/2. 42 Civil Society Europe, ‘Response to the EC Communication “Further Strengthening the Rule of Law within the Union”’ (4 June 2019) 3. 43 Commission (n 1) 6. 44 Case C-78/18 Commission v Hungary [2020] ECLI:EU:C:2020:476. 45 Case C-66/18 Commission v Hungary [2020] ECLI:EU:C:2020:792. 46 ‘Those civil society organisations or individuals who had conveyed their views to the EP, either in writing, in person meetings or by attending the hearings in LIBE, were frequently subjected to harassment as a result of their participation’ (Helsinki Foundation for Human Rights, ‘Opinion on the Communication from the Commission to the European Parliament, the European Council and the Council concerning “Further strengthening the Rule of Law within the Union. State of play and possible next steps” (COM(2019)163 final)’ 4 June 2019).

70  Barbara Grabowska-Moroz and Dimitry Vladimirovich Kochenov the Commission definitely had not done enough to secure NGOs against negative consequences of the ‘Transparency Law’ adopted in Hungary. The new law, which imposed new obligations on NGOs receiving foreign funds, was found to violate obligations under Article  63 TFEU and Articles  7, 8 and 12 of the Charter of Fundamental Rights of the European Union. The Court underlined that the law in question is of such a nature as to create a ‘generalized climate of mistrust vis-à-vis the associations and foundations at issue, in Hungary, and to stigmatize them.’47 This particular case shows that ‘special attention’ from the Commission should involve a timely response, including application for interim measures, not only limited to diplomatic expression of ‘concern’,48 especially when similar measures have been already announced by other authoritarian players.49 The latter allows coming to the same conclusions: while the Hungarian government lost this case too, the Central European University is no longer present in Hungary as a result of the government’s pressure. The case of CEU is the most worrying example of the destruction of a leading institution of higher education in full view, and with full knowledge, of the EU. The Commission’s victory came too late: the school is already in Vienna and Orbán regime’s obscurantism has won for now. The same doubts apply to freedom of the media in the EU Member States. In light of the Eurobarometer survey, a wide range of media allowing for sufficient information and the expression of different opinions was important, or essential, to 87 per cent of respondents.50 However the Commission does not discuss the most extreme cases where captured public media are platforms for domestic smear campaigns against civil society, political opposition and even against EU institutions themselves.51 In this context the Commission’s proposed remedy is upsetting. The Communication mentions a ‘yearly event on Rule of Law’ for dialogue with civil society as well as a new communication strategy. The Commission thus wants everyone to speak with everyone about the Rule of Law, including national parliaments, international organisations and institutions. However, if some elections, although free, are not fair,52 how much ‘Rule of Law learning’ can we expect from the dialogues between the unfairly elected ‘parliaments’ in the captured Member States and the real parliaments? What can we learn from the NGOs if captured Member States cut their

47 Case C-78/18 Commission v Hungary [2020] ECLI:EU:C:2020:476. 48 P Bárd, J Grogan and L Pech, ‘Defending the open society against its enemies: The Court of Justice’s ruling in C-78/18 Commission v Hungary (transparency of associations)’ (VerfBlog, 22 June 2020) at https://verfassungsblog.de/defending-the-open-society-against-its-enemies/. 49 ‘The government is preparing an attack on NGOs in Poland’ (Ruleoflaw.pl, 12 May 2020) at https://ruleoflaw.pl/the-government-is-preparing-an-attack-on-ngos-in-poland/; W Czuchnowski and A Kondzińska, ‘Minister of Justice set to crack down on NGOs, announcing new foreign influence transparency law’ (wyborcza.pl, 10 August 2020) at https://wyborcza.pl/7,173236,26198198,minister-of-justiceset-to-crack-down-on-ngos-announcing-new.html. 50 Rule of law, Report (n 34) 44. 51 A Chapman, ‘Pluralism under attack: The assault on press freedom in Poland’ (Freedom House June 2017) at https://freedomhouse.org/report/special-reports/assault-press-freedom-poland; Joint Mission to Hungary, ‘Conclusions of the Joint International Press Freedom Mission to Hungary’ (3 December 2019), available at https://ipi.media/wp-content/uploads/2019/12/Hungary-Conclusions-International-Mission-Final.pdf. 52 S Walker and D Boffey, ‘Hungary election: OSCE monitors deliver a damning verdict’ The Guardian (9 April 2018) at www.theguardian.com/world/2018/apr/09/hungary-election-osce-monitors-deliver-damningverdict.

Debates Surrounding the 2019 Commission’s Communication  71 funding streams and harass those who still dare to criticise the politicians in power?53 The Commission seems to be willing to send a message of friendly ignorance, which could unfortunately be dangerous, given the high stakes involved. One of the main tools allowing civil society to fulfill its functions is access to public information. Despite the fact that the need for improvement of EU institutional transparency is broadly discussed in the literature,54 the Communication does not set any new aims in this respect. Also analysis dealing with the European judicial networks is quite general. The Commission found that those ‘should be supported to further promote the Rule of Law’, whereas concrete proposals were presented by the stakeholders. It was suggested that some form of judiciary representation should be recognised at the EU level.55 ii.  The Council of Europe The second dimension of the promotion of the Rule of Law advocated by the Commission in its 2019 Communication deals with the relationship between the European Union and the Council of Europe and its institutions (especially the Venice Commission and GRECO). Only the submission from the Hungarian Government questions the role of the findings of the Council of Europe institutions for the purpose of EU actions.56 The recent main concerns regarding the relations between the Council of Europe and the EU dealt with the reservations expressed by the Parliamentary Assembly of the Council of Europe on possible monitoring mechanisms, which could cause the ‘risks of the duplication of mechanisms and standards, fragmentation or inconsistency of applicable standards’.57 In addition to general reference to relations between the CoE and EU, the Commission surprisingly stated that the EU accession to the European Convention on Human Rights ‘will be a strong political signal of the Union’s commitment to the Rule of Law’.58 Also numerous contributions underlined the need for such accession.59

53 M Szuleka, ‘First victims or last guardians? The consequences of Rule of Law backsliding for NGOs: case studies of Hungary and Poland’ (2018) CEPS Paper in Liberty and Security in Europe No 6. 54 A Alemanno and O Ştefan, ‘Openness at the Court of Justice of the European Union: Toppling a taboo’ (2014) 51 Common Market Law Review 97. 55 ‘Furthermore, there is a need for a formalised status within the EU, for judicial networks as representatives of the European judiciaries. The other branches of state have their own formalised EU level bodies that enable them to advise the EU Institutions. The national judiciaries of the EU do not have such a representative body.’ (The General Assembly of the European Network of Councils for the Judiciary, ‘The ENCJ Bratislava Manifesto. For the European Commission and European Parliament 2019 – 2024 mandate’ (7 June 2019) 2. 56 ‘While objective and transparent sources like court judgements or opinions of the Venice Commission could be taken into account when assessing possible Rule of Law issues, the findings and analyses of the Council of Europe should not serve as an automatic basis for measures affecting rights and obligations stemming from EU membership’ (State Secretariat for EU Relations of the Prime Minister’s Office (n 19) 3). 57 Parliamentary Assembly of the Council of Europe, ‘Establishment of a European Union mechanism on democracy, the Rule of Law and fundamental rights’ Resolution 2273 (2019), point 13. 58 Commission (n 1) 7. 59 ‘In this context, the EU’s accession to the European Convention on Human Rights should be pursued’ (‘Input of the Portuguese Government regarding the Commission Communication – Further strengthening the Rule of Law within the Union of 3 April 2019, to the European Parliament, the European Council and the Council’ (25 June 2019)); ‘In line with the Lisbon Treaty and Article 59 of the European Convention

72  Barbara Grabowska-Moroz and Dimitry Vladimirovich Kochenov This was, however, torpedoed by the Court of Justice in its infamous Opinion 2/13,60 coming down to a bid for the purification of the absolute autonomy of the legal order of which it is the custodian, using the Rule of Law as a shield against the introduction of the high standards of human rights protection in the EU.61 Mentioning the revamping of the Council of Europe accession process – notwithstanding the fact that the EU is obliged by the Treaties to eventually accede – is both puzzling and somewhat, if not entirely, out of place. Should the Commission formulate the constitutional capture problem clearly, there would be no need at all to spill the ink focusing on the unlikely developments that our self-minded Court does not welcome.62 The EU’s accession is of no relevance for the most burning issues facing Hungary and Poland today and the Commission could be expected to be clear on this: Rule of Law backsliding and the crisis it has caused has nothing to do with the EU’s accession to the ECHR. Indirectly it was confirmed in the Council of Europe contribution, which stated that ‘the expected accession of the European Union to the ECHR will reinforce the consistency of the legal obligations throughout the continent and, by subjecting the EU institutions themselves to the same obligations and same scrutiny, will reinforce EU’s credibility and legitimacy in debating on Rule of Law issues and promoting common and coherent approaches based on the Rule of Law standards enshrined in the ECHR’.63 B. Prevention The ‘prevention’ section of the Communication is dominated by the idea of new ‘dedicated monitoring’ of the Rule of Law related developments in Member States.64 It eventually took the form of a Rule of Law Review Cycle, which aims to ‘identify risks to the Rule of Law, develop possible solutions, and target support early on.’65 The Cycle seems to be in line with what the European Parliament has long argued for66 and covers a broad scope of Rule of Law issues such as law-making, effective judicial protection, the independence and impartiality of the courts, the separation of powers, and also the capacity of Member States to fight corruption, as well as media pluralism and elections. The Commission wants it to be based on existing on Human Rights (ECHR), the EU will accede to the Convention in the future’ (‘Slovenia’s response to the Communication on Further Strengthening the Rule of Law’ 3); ‘It is therefore important that the EU should accede to the European Convention on Human Rights (ECHR), as it is required to do by Article 6.2 TEU’ (International Commission of Jurists). 60 Opinion 2/13 ECHR Accession II [2014] ECLI:EU:C:2014:2454. 61 D Kochenov, ‘EU law without the Rule of Law. Is the veneration of autonomy worth it?’ (2015) 34 Yearbook of European Law 74. The whole CJEU’s approach to the rule of law could be described as a using the concept as a tool to claim supremacy: D Kochenov, ‘Rule of Law as a Tool to Claim Supremacy’ in A Bodnar and J Urbanik (eds), Περιμένοντας τους Bαρβάρους. Law in the days of Constitutional Crisis. Studies offered to Mirosław Wyrzykowski (CH Beck/Nomos, 2021). 62 But see J Lindeboom, ‘Why EU law claims supremacy’ (2018) 38 Oxford Journal of Legal Studies 328. 63 Council of Europe (n 32) 5. 64 Commission (n 1) 9. 65 ibid. 66 P Bárd, S Carrera, E Guild and D Kochenov, ‘An EU mechanism on democracy, the Rule of Law and fundamental rights’(2016) CEPS Paper on Liberty and Security No 91.

Debates Surrounding the 2019 Commission’s Communication  73 sources of information, which will be ‘brought together and complemented more effectively’. Despite that the Commission announced that a network of national contact points will be established, which could serve as a ‘forum for discussion’ and allow for mutual exchange of information and dialogue on Rule of Law related topics. The Commission argues that the ‘process of dialogue is particularly relevant for detecting potential Rule of Law issues early’ and provides opportunity ‘to discuss Rule of Law sensitive reforms’.67 Furthermore, accelerated law making procedures adopted on many occasions in troublesome Member States (eg, Poland) makes such expectations naïve. Solving the problem of Rule of Law backsliding (meaning a deliberate political choice of domestic political institutions) through dialogue and cooperation is impossible, since dialogue and cooperation cannot be an answer to a calculated choice not to comply with the core principles, thus abusing the vulnerabilities of the enforcement tools available in the context of the EU legal system, while freeriding on the principle of mutual trust and reaping the economic benefits of the internal market. It is one of the reasons why the peer-review process was criticised by the stakeholders during the consultations.68 Furthermore, conducting a broad dialogue about Rule of Law developments in Member States might be, however, challenging, if the domestic environment for discussion regarding civil society, media or academia is hostile. There are two more problems with the regular assessment proposed by the Commission, however. First, it threatens to significantly alter the nature of EU ­federalism:69 for the Commission to mingle with the essential features of the Member States outside the scope of fundamentally exceptional cases – such as Hungary and Poland today – has the potential to open Pandora’s box of the re-articulation of the limits of EU action. The outcome could be ongoing violations in the powerful Member States, coupled with the increased bullying of the smallest Member States, which would have little say in the face of the Commission’s pressure in a situation where the law is merely ‘soft’ and, consequently, the strictness of the basic rules regarding the division of powers between the EU and the Member States becomes more and more lax.70 Secondly, the regular reporting is premised on the Member States’ benevolence and their willingness to comply. Given that the starting paradigm mistakenly embraced by the Commission is entirely false, as demonstrated above, the outcomes of what the Commission proposed are highly unlikely to bring about a positive change to the EU’s Rule of Law landscape, let alone solve the core Rule of Law problems on which the Commission’s Communication remains silent. What they can do, however, is endanger the fragile balance of powers between the EU and the Member States in a situation where outright exceptional cases, which are absolutely

67 Commission (n 1) 11. 68 ‘MEDEL wishes to make clear its strong opposition to a peer-to-peer review mechanism between Member States as the one that has recently been proposed’ (Magistrats Européens pour la Démocratie et les Libertés, ‘Contribution to the debate launched by the European Commission on “Further strengthening the Rule of Law within the Union”’). 69 R Schütze, From Dual to Cooperative Federalism (OUP, 2009); D Kochenov (ed), EU Citizenship and Federalism: The Role of Rights (CUP, 2017). 70 O Ştefan, ‘Soft law and the enforcement of EU law’ in A Jakab and D Kochenov (eds), The Enforcement of EU Law and Values (OUP, 2017).

74  Barbara Grabowska-Moroz and Dimitry Vladimirovich Kochenov clear, are not referred to by name. A false paradigm cannot be placed at the core of the crucial roadmap to solve the outstanding problems, however ill-identified. Furthermore, the stakeholders suggested that the monitoring mechanism could build upon the experience of the UN peer review mechanisms, such as the Universal Periodic Review.71 In this respect the role of civil society cannot be limited only to the ‘promotion’ aspect, but needs to be secured also with respect to the ‘Rule of Law review cycle’. Additionally, ‘setting up structured means of input from civil society would greatly enhance transparency of the process’ and ‘would also contribute to protecting against possible negative consequences, such as reprisals, smear campaigns, harassment of civil society organisations or individual human rights defenders, by sending a clear message that the role of civil society is recognised and their contributions are valued by the European institutions’.72 In the context of its Rule of Law Communication the Commission underlined the role of the Fundamental Rights Agency, which developed the EU Fundamental Rights Information System (EFRIS) – a comprehensive database that is relevant for Rule of Law discussion. Grimheden and Toggenburg have long advocated the deeper involvement of the FRA in the management of the Rule of Law crises and it is great that the Commission is starting to take the Agency seriously in the Rule of Law context.73 However, the Communication does not suggest that the mandate of FRA be ­broadened,74 which would support the independent role of the FRA in the Rule of Law field.75 The main result of the Rule of Law Review Cycle is an annual Rule of Law Report76 published by the Commission, providing synthesis of the developments and a source of information for further inter-institutional dialogue.77 The Communication does not explain, however, how this aspect will contribute to prevention of Rule of

71 ‘The methods developed and used by the monitoring mechanisms of the United Nations human rights treaty bodies could serve as a model to build on in this respect, where there are clear rules about how those wishing to contribute information may do so, and such information is made publicly available.’ (Helsinki Foundation for Human Rights (n 46); ‘If a credible peer review mechanism were to be established, it could probably draw on the experience of the Universal Periodic Review (UPR), where everyone reviews everyone in order to avoid a Poland reviews Hungary type of situation. However, this would probably require a significantly higher amount of commitment and domestic resources; International Commission of Jurists – To define a clear normative basis and thematic focus for such assessments, on principles of the Rule of Law, based in EU law and on established and authoritative international standards, including those of the Council of Europe and the UN; To ensure that assessments are linked with and build on existing Council of Europe and United Nations systems and standards.’ (International Bar Association, ‘IBA Reflection paper on the EU Commission Communication of April 3, 2019 – Strengthening the Rule of Law within the European Union’ (June 2019) 11). 72 Helsinki Foundation for Human Rights (n 46). 73 GN Toggenburg and J Grimheden, ‘The Rule of Law and the role of fundamental rights: seven practical pointers’ in Closa and Kochenov (eds), Reinforcing Rule of Law Oversight in the EU (n 4). 74 J Wouters and M Ovádek, ‘What political role for the EU’s Fundamental Rights Agency?’ (2019) KU Leuven Working Paper No 209. 75 L Pech and J Grogan, ‘Upholding the Rule of Law in the EU. What role for FRA?’ in B Rosemary and H Entzinger (eds), Human Rights Law and Evidence-Based Policy: The Impact of the EU Fundamental Rights Agency (Routledge, 2019). 76 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions, 2020 Rule of Law Report The rule of law situation in the European Union, COM/2020/580 final. 77 Commission (n 1) 11.

Debates Surrounding the 2019 Commission’s Communication  75 Law backsliding,78 whereas the Annual Rule of Law Report could be employed as a tool contributing to adoption of ‘autocrat-proof EU legislation’, including a suspension mechanism activated automatically when a Member State is subject to Article 7 proceedings.79 Analysis of some contributions to the report submitted in May 2020 already shows how comprehensive the report needs to be to cover all basic Rule of Law elements. It is evident in this context that covering all of the issues presented by the stakeholders might lead to blurring the extreme cases of Rule of Law backsliding by comparing incomparable threats to the Rule of Law (ie, comparing systemic undermining checks and balances in Poland with technical obstacles to extensive length of judicial proceedings in Italy). Besides it is highly important to avoid thinking that a Rule of Law report can replace timely actions under Article 258 TFEU. C. Response Surprisingly one of the main features of the ‘response’ section seems to be minimalism: reducing response as much as possible. In light of the Commission’s Communication, ‘response’ should be introduced ‘when national Rule of Law safeguards do not seem capable of addressing threats to the Rule of Law in a Member State’.80 Furthermore, regarding the core principles underlying EU action in terms of the Rule of Law, the Commission stated that ‘the objective must not be to impose a sanction but to find a solution that protects the Rule of Law’. Interestingly, the government of Poland underlined that ‘openness to dialogue must prevail over the temptation to impose sanctions or threaten with their immediate use’.81 A completely different approach was presented by the International Bar Association, which found that ‘unless or until the stakes are raised and meaningful sanctions are in place (and enforced with greater speed) infracting Member States will continue to operate with perceived impunity’.82 That is why it should be of no surprise that ‘the need for a stronger EU Rule of Law toolbox clearly emerged from’83 the consultations initiated in April 2019, whereas the Commission still believes in the power of dialogue leading to ‘swift de-escalation’.84 78 For the detailed criticism regarding the Commission’s Rule of law Report, see: L Pech, ‘Doing more harm than good? A critical assessment of the European Commission’s first Rule of Law Report’, RECONNECT Blog (9 December 2020) at https://reconnect-europe.eu/blog/doing-more-harm-thangood-a-critical-assessment-of-the-european-commissions-first-rule-of-law-report/; L Ravo, ‘“Undrinkable Cocktails” and a Soft Bartender: A Review of the First EU Rule of Law Report’, Liberties (1 October 2020) at www.liberties.eu/en/stories/eu-rule-of-law-report-2020/18889; A Mungiu-Pippidi, ‘Unresolved Questions on the EU Rule of Law Report’, Carnegie Europe (20 October 2020) at https://carnegieeurope. eu/2020/10/20/unresolved-questions-on-eu-rule-of-law-report-pub-82999. 79 L Pech and D Kochenov, ‘Strengthening the Rule of Law Within the European Union: Diagnoses, Recommendations, and What to Avoid’ (2019) RECONNECT Policy Brief 13. 80 ibid 13. 81 ‘Poland’s contribution’ (n 18) 3. 82 ‘Ergo, in the absence of a significant financial disincentive, the problem is unlikely to be resolved. The Article 7 procedure is, in effect, never-ending as a process. It requires unanimity, which can be hard to obtain if sympathetic Member States defend each other or have similar political priorities’ (International Bar Association (n 71) 9). 83 Commission (n 1) 2. 84 ibid 13.

76  Barbara Grabowska-Moroz and Dimitry Vladimirovich Kochenov We will concentrate on three main ‘response’ actions provided in the Communication: ‘systemic’ infringement actions, the Rule of Law Framework and the Article 7 procedure. i.  Strategic Approach to Infringement Actions The Commission underlined the role of the CJEU case law constituting a reaction to attacks on independence of the judiciary and expressed its commitment to pursue ‘a strategic approach to infringement proceedings related to the Rule of Law, requesting expedited proceedings and interim measures whenever necessary’,85 especially when Rule of Law problems ‘could not be solved through the national checks and balances’.86 Let us not forget that this is – and has always been – the Commission’s duty as the guardian of the Treaties and that its timid fulfilment of these duties coupled with the failure to see the full picture – like in Commission v Hungary,87 has unquestionably contributed to the aggravation of the Rule of Law crisis in the European constitutional space. It is great that the Court has taken the lead and that the Commission acknowledges this and seemingly stands ready to start learning from its own mistakes. The problem, however, is that the Commission could be expected to be just as active as the Court from day one when the troubles with the constitutional capture started and this has not been the case, lending many years of largely untroubled existence to the backsliding governments busy dismantling the Rule of Law. Despite the fact that the idea of a more systemic approach to infringement actions was analysed in the literature for years88 and was supported by the stakeholders,89 the recent deterioration in the field of judicial independence in Poland did not result in a timely reaction from the Commission – the request for an interim measure was submitted almost three months after the infringement action, regarding disciplinary regime against judges, was sent to the Court.90 Furthermore, the latest ‘muzzle law’ adopted in Poland still did not result in an infringement action at the time of writing, despite political declarations,91 including the one expressed in the Communication

85 ibid 14. 86 Commission (n 1) 4. 87 Case C-286/12 Commission v Hungary [2013] 1 CMLR 44. 88 See, most importantly, KL Scheppele, D Kochenov and B Grabowska-Moroz, ‘EU Vlaues Are Law, after All’ (2020) 39 Yearbook of European Law 1; KL Scheppele, ‘Enforcing the basic principles of EU law through systemic infringement actions’ in Closa and Kochenov (eds), Reinforcing the Rule of Law Oversight in the EU (n 4); A Śledzińska-Simon and P Bárd, ‘The Teleos and the anatomy of the Rule of Law in EU infringement proceedings’ (2019) 11 Hague Journal on the Rule of Law 439. 89 ‘Infringement proceedings should therefore be initiated regularly and promptly by the Commission where it identifies violations of the Rule of Law, including in cases of violation of basic principles of the Rule of Law under Article 2 TEU or the right to legal protection under Article 19.1 TEU, or where violations of Rule of Law principles affect the application of EU legislation.’ (International Commission of Jurists (n 20) 13.) 90 European Commission, ‘Daily News 14 / 01/ 2020’ (14 January 2020) at https://ec.europa.eu/ commission/presscorner/detail/en/mex_20_56. 91 ‘Polish parliament approves judge ‘muzzle law’, Commission ‘very concerned’’ (Euractiv, 24 January 2020) at www.euractiv.com/section/justice-home-affairs/news/polish-parliament-approves-judge-muzzlelaw-commission-very-concerned/.

Debates Surrounding the 2019 Commission’s Communication  77 that it is ‘important that the EU institutions act swiftly and have a more coherent and concerted approach’.92 ii.  The Rule of Law Framework and the Article 7 TEU Procedure It is most regrettable that the Commission provides no critical assessment of the practices of the Rule of Law Framework or the Article 7 procedure, both boasting zero results up to now – and for very sound reasons. While the Commission awoke to the time-sensitive nature of the infringements of the values,93 not a single word in the Communication explains why the deeply problematic Rule of Law Framework, which bought the backsliding governments so much time thanks to the Commission’s own initiative, is still part of the toolbox. The Government of the Netherlands suggested, for instance, that within the Rule of Law Framework ‘recommendations to Member States should be accompanied by specific action plans and technical support programmes, and linking them to specific time paths’.94 Setting aside diplomatic optimism95 and criticism expressed before by the Council Legal Service,96 the Commission should not only speed up the conduct of the Rule of Law Framework but also make it more transparent and inclusive.97 ‘Limited transparency impedes the Commission’s ability to fully assess the situation in a Member State’.98 As it was underlined by the Helsinki Foundation for Human Rights and the Hungarian Helsinki Committee, the notion of ‘discussion’ – a basic tool applied in the Rule of Law Framework – ‘assumes that the Rule of Law can be negotiable and that it is possible to destroy the constitutional safeguards of checks and balances and then simply discuss this with the Member State’. Together with a lack of any time limits it allowed for further backsliding, which was not recognised by the Commission as a problem in its Communication. Such a dialogue ‘may often benefit Rule of Law violators more than its defenders’.99 Also the debate on the Article 7 procedure did not result in any critical assessment in the Communication, except ensuring the role of the European Parliament in the procedure and providing ad hoc openness to the Council of Europe bodies. 92 Commission (n 1) 14. 93 M Schmid and P Bogdanowicz, ‘The infringement procedure in the Rule of Law crisis: How to make effective use of Article  258 TFEU’ (2018) 55 Common Market Law Review 1061; LW Gormley, ‘Infringement proceedings’ in Jakab and Kochenov (eds) (n 70). 94 Dutch Ministry of Foreign Affairs (n 37). 95 ‘The Rule of Law Framework has proven to be a useful preliminary stage to the article 7 where important information is gathered and analyzed by the Commission, the Guardian of the Treaties. This process is useful not only to the Member State in question but also to others as it highlights concrete actions and practices giving guidance to the compliance of the Rule of Law.’ (‘Swedish input to the European Commission Communication on Further strengthening of the Rule of Law within the Union (COM(2019) 163 final)’ (17 July 2019)). 96 ‘Rule of law framework is not compatible with the principle of conferral which governs the competences of EU institutions’ (State Secretariat for EU Relations of the Prime Minister’s Office (n 19)). 97 ‘The Commission did not recognise the role of non-governmental organisations, media or academia as sources of information relevant for a full and correct assessment of the situation in a Member State. Non-governmental actors are indispensable to verify the information provided by the government.’ (Helsinki Foundation for Human Rights (n 46).) 98 ibid. 99 International Bar Association (n 71).

78  Barbara Grabowska-Moroz and Dimitry Vladimirovich Kochenov ‘Clearer procedures and timelines’ recommended towards the Article  7 procedure mean, however, nothing without clear political will to decide upon clear violations of the Rule of Law by Member States. It should be worth noting not to miss the role of the procedure expressed by the Swedish government: ‘One of its advantages is still the fact that the process brings light to the actual situation, which creates a pressure to comply with the breached rules. It is therefore important to continue the political dialogue within the context of article 7.’100 Nevertheless, the consultations showed that it is difficult to avoid discussion about how Article 7 should be amended in order to improve its efficiency, meaning the probability that effective sanction will be imposed on a rogue Member State.101 IV.  WHAT IS MISSING IN THIS PICTURE?

Communication tries to be as politically correct as possible and that is why it avoids calling a spade a spade. ‘Political developments in several Member States’ and ‘deliberate policy choices’102 are soft descriptions of Rule of Law backsliding – deliberate dismantling of checks and balances – applied in Hungary and Poland in order to secure a one-party system. The Commission does not introduce any differentiation between those two hard cases (where effective national redress mechanisms do not exist in practice) and typical everyday shortcomings regarding implementation of the Rule of Law principle. The Eurobarometer survey showed that 80  per  cent of respondents expressed the need for some improvements regarding the Rule of Law in their countries.103 However ‘nobody’s perfect’104 shouldn’t be a threshold for assessing systemic Rule of Law backsliding. The Member States that took a political choice, which is not formally available in the EU’s constitutional landscape, to oppose the values of Article  2 TEU are the most important problem, not the ones which are unknowingly non-compliant and negligent.105 Meanwhile, contributions showed that causes of the Rule of Law crisis might be more difficult than only technical or financial shortcomings.106 The Dutch Parliament 100 ‘Swedish input’ (n 93). 101 ‘In the long term, therefore, consideration should be given to amending the TEU to reduce the scope for political influence on the Article 7 process. Such an amendment could assign the determination of a serious and persistent breach under Article 7.2 as well as the decision on sanctions under Article 7.3 to the Court of Justice, thereby providing further judicialization of the procedure. In the shorter term and within the current legal framework, the working methods of the Council should be amended to provide for greater transparency in the Article 7 process, including through increased consultation with civil society.’ (International Commission of Jurists (n 20)). 102 Commission (n 1) 5. 103 ibid 13. 104 A Rettman, ‘Von der Leyen signals soft touch on migrants, Rule of Law’ (EUObserver, 19 July 2019) at https://euobserver.com/news/145504. 105 D Kochenov, ‘The acquis and its principles: the enforcement of the “law” vs. the enforcement of “values” in the European Union’ in Jakab and Kochenov (eds) (n 70). 106 The academic literature on this important point is growing: P Blokker, ‘Populist counterconstitutionalism, conservatism, and legal fundamentalism’ (2019) 15 European Constitutional Law Review 518; Adamski (n 3); A Sajó, ‘The Rule of Law as legal despotism: Concerned remarks on the use of “Rule of Law” in illiberal democracies’ (2019) 11 The Hague Journal on the Rule of Law 371; P Blokker, ‘Populist constitutionalism and meaningful popular engagement’ (2018) The Foundation for Law, Justice

Debates Surrounding the 2019 Commission’s Communication  79 points, for instance, at a ‘winner-takes-all mentality’ as one of the factors which might lead to direct attacks on the checks and balances system.107 Without dealing with such a political challenge, the need for inter-parliamentary dialogue,108 as a suggested as part of promotion of the Rule of Law, might be a meaningless exercise. The situation in Hungary and Poland today is thus radically different from that of the Member States with troubled institutional structures, such as Greece;109 Member States with particular electoral outcomes;110 or Member States in principled disagreement with the EU on the functioning of some principles, as was the case with Germany and its courts pushing through the change in the EU’s approach to the idea of human rights protection.111 Unfortunately, the Commission does not explain the nature of Rule of Law backsliding in troubled Member States. Scholars have been clear on what the key causes of the latter are: the lack of a clear will by the Member States and the inability of the EU institutions to utilise the full potential of the available legal instruments available to match the gravity of the problem. Without outlining the causes, it is difficult, of course, to expect effective solutions. Lack of political will can be seen not only with respect to the Article 7 procedure but also can be seen during budget negotiations.112 The Communication refers to the regulation proposal allowing the linking of EU funds and ‘general deficiencies as regards to the Rule of Law in Member States’,113 as a tool which would ‘avoid or remedy specific risks to the implementation of EU law or policies’.114 On the one hand, it was suggested during the debate that conditionality ‘is unlikely to produce beneficial outcomes’ and might ‘stimulate an instrumental, rather than a normatively driven, value-based engagement with reforms’.115 On the other hand, the Commission does not review whether such a link between the Rule of Law requirement and access to EU funds can be established according to EU law already in force.116 The Communication fails to take the problem – a deeply exceptional depth of the constitutional capture in two Member States – seriously enough to place it at

and Society Policy Brief; KL Scheppele, ‘The social lives of constitutions’ in P Blokker and C Thornhill (eds), Sociological Constitutionalism (CUP, 2017). 107 Tweede Kamer, ‘Report by the Rapporteur on Rule of Law developments in the European Union’ 13 March 2019. 108 Commission (n 1) 7. 109 M Ioannidis, ‘Weak members and the enforcement of EU law’ in Jakab and Kochenov (eds) (n 70). 110 ie, FPÖ crisis in Austria leading to a reform of Article 7 TEU: K Lachmayer, ‘Questioning the basic values – Austria and Jörg Haider’ in Jakab and Kochenov (eds) (n 70). 111 FC Mayer, ‘Defiance by a constitutional court’ in Jakab and Kochenov (eds) (n 70). 112 E Zalan, ‘EU leaders face major clash on Rule of Law budget link’ (EUObserver, 19 February 2020) at https://euobserver.com/political/147495; J Rankin and D Boffey, ‘Tensions mount between EU members ahead of budget talks’ The Guardian (19 February 2020) at www.theguardian.com/world/2020/feb/19/ tensions-mount-between-eu-members-ahead-of-budget-talks. 113 European Commission, ‘Proposal for a Regulation of the European Parliament and of the Council on the protection of the Union’s budget in case of generalised deficiencies as regards the Rule of Law in the Member States’ (Proposal) COM (2018) 324 final. cf M Fisicaro, ‘Rule of Law conditionality in EU funds: The value of money in the crisis of European values’ (2019) 4 European Papers 695. 114 Commission (n 1) 15. 115 Paul Blokker’s submission, p 7. 116 RD Kelemen and KL Scheppele, ‘How to stop funding autocracy in the EU’ (VerfBlog, 10 September 2018) at https://verfassungsblog.de/how-to-stop-funding-autocracy-in-the-eu/.

80  Barbara Grabowska-Moroz and Dimitry Vladimirovich Kochenov the centre of its resulting hugely befogged analysis. By failing to mention, let alone explain, what the actual core problems with the Rule of Law that the EU is facing are, the Commission has consequently left the most fundamental Rule of Law problems out of the picture, effectively disconnecting the Rule of Law Communication from the essence of the ongoing fight for the Rule of Law on the ground in the abusive Member States. It is the idea that some Member States would proactively seek to undermine the Rule of Law in order to create de facto one-party regimes where democracy is paralysed, and the Rule of Law is hollowed, that is missing from the Communication. Furthermore, the Commission does not provide critical analysis of the Rule of Law in the EU, which would strengthen the EU against criticism that the EU itself does not meet adequate institutional117 and procedural requirements,118 resulting in potentially unlawful composition of the CJEU – EU’s own Court.119 V. CONCLUSION

It does not seem that the Communication has provided any new approach to Rule of Law ‘hard cases’. The Commission absolutely failed to clarify this crucially important matter: ‘what is the essence of the EU’s Rule of Law problem?’ the Commission’s contribution seems to be punching way below the weight of that institution in terms of supplying a clear and realistic assessment of what the EU is dealing with today. It was clearly visible in the statements made by the new Commission and its President arguing that ‘nobody’s perfect’.120 Belief in more dialogue constitutes an approach which will only lead to ‘more time being wasted even while Rule of Law backsliding is spreading to more EU countries and endangering the very survival of the EU legal order’.121

117 Kochenov (n 61). 118 Alemanno and Ştefan (n 54). 119 D Kochenov and G Butler, ‘The Independence and Lawful Composition of the Court of Justice of the European Union: Replacement of Advocate General Sharpston and the Battle for the Integrity of the Institution’ (2020) Jean Monnet Working Paper 2-2020 (NYU Law School). 120 Rettman (n 102). 121 L Pech, D Kochenov, B Grabowska-Moroz and J Grogan, ‘The Commission’s Rule of Law Blueprint for Action: A Missed Opportunity to Fully Confront Legal Hooliganism’ (VerfBlog, 5 September 2019) at https://verfassungsblog.de/the-commissions-rule-of-law-blueprint-for-action-a-missed-opportunity-tofully-confront-legal-hooliganism/.

Part Two

The People

82

6 The People vs Democracy? The Populist Challenge to Judicial Review JUSTIN COLLINGS*

Democracy reads well; but it doesn’t act well, like some people’s plays. Lord Summerhays in George Bernard Shaw’s Misalliance

I. INTRODUCTION

K

arlsruhe.

Eight judges file solemnly into the courtroom and take their places, still standing, behind the bench. They stand on a wood-paneled rostrum, brilliant in their scarlet robes, their angular Renaissance hats, their ruffled white bibs. Behind them on the wall hovers Germany’s federal eagle, symbol of the postwar republic – its prosperity and peace. Above the eagle looms a single word: Bundesverfassungsgericht (Federal Constitutional Court). These eight judges comprise one of the Court’s two Senates or chambers. One of them, the panel’s presiding judge, is about to announce a judgment. The announcement begins, as always, with a single, riveting phrase: Im Namen des Volkes! (‘In the name of the People!’). True, the German justices communicate in a language that ‘the People’ could never reproduce. Sometimes they converse in terms the People could never understand. But they speak and write about the People’s charter – Germany’s postwar Constitution or ‘Basic Law’ (Grundgesetz) – and they do so, emphatically, in the People’s name. Leipzig. Thousands of demonstrators line the streets, which buzz and hum with passionate energy. The demonstrators wave a motley array of banners and signs, all of which make clear that the demonstrators are alarmed. Some signs suggest that many are angry. Their movement bears an almost implausibly portentous name – Patriotic Europeans Against the Islamization of the Occident (PEGIDA). As they march, they chant in a steady, rhythmic, incantatory refrain. It is the same refrain that resounded in these streets 30 years before, albeit under different circumstances and toward very different ends. ‘Wir sind das Volk!’ they cry. ‘We are the People!’ Numerically, this is

* Brigham Young University.

84  Justin Collings nonsense. But symbolically, the demonstrators are in dead earnest. They, and populists like them the world over, claim to speak in the people’s name. They claim to represent – indeed, they claim to be – the real people. They too assert their claims im Namen des Volkes. At first blush, constitutional courts and populist politicians have little in common. Constitutional judges are quintessential elites – highly-educated umpires wielding technocratic expertise far from the madding crowd and (ostensibly) above the political fray. They are unelected officers shielded from many democratic and political pressures. Some defenders of constitutional judicial review believe that constitutional judges’ principal raison d’être is to protect minority rights against majority infringement. They are, as Alexander Bickel famously put it, counter-majoritarian.1 That is their purpose and their predicament, their problem and their point. Populists, by contrast, are often wary of minorities, who in their view threaten to undermine the polity’s identity and thwart what they term ‘the People’s’ will. Populists rail against elites of all sorts, but they rail against constitutional judges with particular venom and vim. Judges, for their part, often reciprocate populists’ distrust. Sometimes they openly return their scorn. Populists and constitutional judges are sharply divided in their outlook and upbringing, their values and aims. They often regard one another with mutual hostility and dismay. And yet. Beneath these apparent differences and beyond their mutual mistrust, populists and constitutional courts frequently share something fundamental. Both, at times, defend their efforts through a ‘thick’ revisionist conception of democracy. Both are accused by their various detractors of being fundamentally antidemocratic. Both insist that their critics’ objections are specious and superficial. Both respond by redefining democracy. Both claim, at bottom, to be quintessentially democratic. Both issue this response in the name of ‘the People’. Of course, the redefinition of democracy put forth by populists differs wildly from the one embraced by champions of judicial review. The underlying conceptions of ‘The People’ lie worlds apart. But unpacking those differences in the context of their (perhaps) ironically similar framework can be highly instructive. To do so is this chapter’s basic aim. I argue that defenders of judicial review – and I count myself among their number – need to be more wary of its excesses and more open about its democratic costs. Specifically, I will suggest that redefining democracy in ways that cast judicial review as somehow more democratic than the demos is doubly dangerous: it proves the populists’ point about judicial review’s basic elitism, and it replicates the populists’ sleight-of-hand by claiming a special prerogative to represent, and redefine, ‘the People’. II.  THE POPULIST MOMENT

For the last half decade and more, populism has been described by its detractors in increasingly apocalyptic terms. A specter, one reads, is haunting more than just Europe. Populism prowls the planet. For many commentators, its daemon has already 1 AM Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Yale University Press, 1962) 16 (‘The root difficulty is that judicial review is a counter-majoritarian force in our system.’).

The People vs Democracy?  85 been unloosed. The metaphors are menacing. Some call it an ominous ‘wave’,2 others a crushing ‘tsunami.’3 At the same time, liberal democracy looks battered and weak. Its unrivaled dominance at ‘the end of history’4 belongs to the increasingly distant past.5 The ‘end of history’ is history. Liberal democracies’ economic heft has declined even as that of some autocratic nations has increased. Meanwhile, many democracies are embattled at home. Unsettling empirical research suggests that ‘across North America and Western Europe, citizens really are turning away from democracy in large numbers’.6 Some democracies face stern challenges from populist contenders. Others have already succumbed. Perhaps the most dramatic cases are Hungary and Poland, the one-time poster children of post-communist democratic revival.7 The populists’ rise in those two lands has been attended by a concerted attack on institutions and principles of liberal democratic constitutionalism.8 For the champions of those institutions and those principles, the results have been devastating. The attack on constitutional liberalism, in East Central Europe and elsewhere, has battered the faith of many liberal constitutionalists. Many commentators sorrowfully conclude that liberal constitutionalism is a less effective bulwark against democratic backsliding than its champions once believed.9 ‘[T]he last few years’, writes one of them, ‘have exposed the institutional fragility of constitutional courts when they are targeted by populist forces. More broadly’, this writer continues, ‘we may be forced to question the capacity of the courts to protect democracy from illiberal majorities’.10 The populists, it seems, are at the gates; the doors, it seems, are giving way. A.  What is Populism? Among liberals, of course, there is more agreement about populism’s threat than about its definition.11 One of the most influential accounts on offer is that of 2 See J Kurlantzick, ‘The Populist Wave Will Continue’ World Politics Review (25 February 2019). 3 See N Barkin, ‘After Trump and Brexit, Populist Tsunami Threatens European Mainstream’ Reuters (9 November 2016). 4 See, of course, F Fukuyama, The End of History and the Last Man (Free Press, 1992). 5 ‘In the span of a quarter century’, write Y Mounk and R de Stefano, ‘liberal democracies have gone from a position of unprecedented economic strength to a position of unprecedented economic weakness’. Y Mounk and R Stefan Foa, ‘The End of the Democratic Century: Autocracy’s Global Ascendance’ Foreign Affairs (May/June 2018) 30. 6 Y Mounk, The People vs. Democracy: Why Our Freedom is in Danger and How to Save It (Harvard University Press, 2018) 105. This chapter of Mounk’s book summarises the findings of R de Stefano and Y Mounk, ‘The Danger of Deconsolidation: The Democratic Disconnect’ (2016) 27 J. Democracy 5. 7 See eg I Krastev, ‘Eastern Europe’s Illiberal Revolution’ Foreign Affairs (May/June 2018) 49, 49. 8 See eg T Ginsburg and B Bugarič, ‘The Assault on Postcommunist Courts’ (2016) 27 J. Democracy 69; W Sadurski, ‘How Democracy Dies (in Poland). A Case Study of Anti-Constitutional Populist Backsliding’ Sydney Law School Legal Studies Research Paper, 18 January 2018. 9 A Jakab, ‘What Can Constitutional Law Do Against the Erosion of Democracy and the Rule of Law?: On the Interconnectedness of the Protection of Democracy and the Rule of Law’ MPIL Research Paper Series No. 2019-15; B Bugarič, ‘Central Europe’s descent into autocracy: A constitutional analysis of authoritarian populism’ (2019) 17 Int’l J Const L 597, 600; D Ziblatt and S Levitsky, How Democracy’s Die (Crown, 2018) 130–32. 10 Bugarič (n 9) 613. 11 cf N Walker, ‘Populism and constitutional tension’ (2019) 17 Int’l J Const L 515, 516 (‘The idea of populism is intensely fashionable, and like most intensely fashionable things, its meaning is in a constant

86  Justin Collings Jan-Werner Müller. In his elegant essay, What is Populism?,12 Müller defines populism as ‘a particular moralistic imagination of politics’ that is both anti-elitist (populists bash elites as ‘corrupt or in some other way morally inferior’) and anti-pluralist (‘populists claim that they, and only they, represent the people’).13 Populism, Müller maintains, ‘requires a pars pro toto argument’ with ‘someone speaking in the name of the people as a whole’.14 Populism’s ‘core claim’ is that ‘only some of the people are really the people’.15 Its quintessence is synecdoche – the part speaks for the whole, the populist for the people.16 That claim, Müller insists, is moral, not empirical.17 On his telling, populists don’t claim that all the people, or even a majority of the people, support them. They claim instead that the true people support them – the authentic people, the real people, the pure people, the people not corrupted or seduced. Thus, on Müller’s telling, populists dismiss electoral defeat by arguing that entrenched elites have either cheated outright by rigging the game or won an illegitimate victory by manipulating and misleading voters. Populists not only disagree with their opponents as wrongheaded; they denounce them as illegitimate. And their opponents’ supporters, be they few or many, simply don’t count. Only ‘the People’ count. The implications of this perspective for a democracy are obvious and alarming. Power democratically won by others is, on this view, illegitimate. Power democratically won by populists is, by contrast, all-legitimating. When populists win, the People have spoken. And the People’s voice covers – it might even require – a multitude of sins. Once in power, Müller notes, populists flout democratic norms and subvert democratic institutions.18 They defy the separation of powers and scorn the rule of law. And why not? After all, anything that prevents populists giving full expression to the People’s authentic will is, by the populists’ logic, profoundly undemocratic. Populists see their rule as the ultimate democracy. They are, in fact, the demos. To stand in their way is to shackle the people. Any actor or institution that would do that is consummately illegitimate. To crush such illegitimacy is, for populists, the ultimate legitimacy. Such a programme, in Müller’s view, is undemocratic as well as illiberal. Indeed, Müller rejects the very notion of ‘illiberal democracy’ as an unwitting sop to would-be tyrants. Authoritarian regimes celebrate the label,19 and liberals should be loath to give them cause for celebration.20 state of evolution and contestation.’). Bugarič, following Paul Taggart, notes populism’s ‘chameleon-like’ quality; ‘it takes a variety of guises’. See Bugarič (n 9) 598–99. 12 J-W Müller, What is Populism? (University of Pennsylvania Press, 2016). 13 ibid 19–20. 14 ibid 20. 15 ibid 21. 16 Other writers similarly cast populism as essentially anti-pluralist. N Urbinati, for instance, writes: ‘Populism … seeks state power to implement an agenda whose main and recognizable character is hostility against liberalism and the principles of constitutional democracy, from minority rights, division of powers, and pluriparty system.’ Democracy Disfigured: Opinion, Truth, and the People (2014). 17 Müller (n 12) 21. 18 ibid 41–74. 19 As Viktor Orbán, Hungary’s prime minister, has put it: ‘A democracy is not necessarily liberal. Just because something is not liberal, it still can be a democracy.’ Krastev (n 7) 49. 20 See J-W Müller, ‘The Problem with “Illiberal Democracy”’ Project Syndicate (21 January 2016), at www.project-syndicate.org/commentary/the-problem-with-illiberal-democracy-by-jan-werner-mueller2016-01?barrier=accesspaylog.

The People vs Democracy?  87 Müller’s account has not, of course, gone uncontested. Robert Howse, for one, insists that ‘populism can denote any kind of disruption of elite-directed politics in mature liberal democracies’ and chides Müller and others for failing to ‘recognize equally as populism those efforts against establishment or elite politics that are consistent with protecting minority rights, constitutional democracy, and pluralism’.21 Howse celebrates such strands of populism for their powerful critique of liberal elitists, whom he censures for being more concerned with order than with liberty, and for their undue fondness for, and unjustified confidence in, judges and other technocratic elites.22 ‘Populism’, Howse concludes, ‘as usually and pejoratively defined to include nativism, antiliberalism, and anti-pluralism has little to do with many of today’s powerful critiques of and challenges to elite liberal democratic politics’.23 Other writers similarly define populism more expansively to include progressive and pluralist movements.24 At bottom, this is a tussle about terms, undergirded by very different attitudes toward liberal elites. The populists that Howse admires are, on Müller’s account, ‘simply not populists’.25 Howse shoots back that this narrow and exclusive definition is ‘thoroughly question-begging’.26 The dilemma is that the broader definition lacks clarity and precision, uniting as ‘populists’ groups and figures that share little beyond opposition to ruling elites, whereas the narrower definition achieves clarity and precision by turning ‘populism’ into a swear word (or worse), a move that can’t help but hurt groups who don’t fit Müller’s illiberal, anti-pluralist definition but who call themselves, or get called, populists. I don’t intend to pick a side in this dispute, but the populists described in this chapter are mainly the ones that Müller describes. Howse might be right that there are other populists, but Müller’s populists are populists, even if not the only ones. As populists, they challenge constitutional judicial review – in both theory and practice – with particular intensity. And their anti-elitist invocation of ‘the People’ mirrors the rival, elitist invocations of ‘the People’ by some defenders of judicial review in ironic and unsettling ways. In another prominent account of populism, Yascha Mounk agrees with Müller that populists are unfailingly illiberal but denies that they are invariably undemocratic.27 Mounk warns of the conceptual confusion that stems from a common tendency to conflate democracy with liberalism. The two, indeed, have often travelled together, and their union, as noted earlier, was once consecrated as ‘the end of history’.28 But the emerging crisis of the twenty-first century, Mounk warns, is that the two have

21 R Howse, ‘Epilogue: In defense of disruptive democracy – A critique of anti-populism’ (2019) 17 Int’l J Const. L 641, 641, 645. 22 ibid 647–50. 23 ibid 659. 24 See eg C Mouffe, For a Left Populism (Verso, 2018); E Laclau, On Populist Reason (Verso, 2005). 25 Müller (n 12) 20. 26 Howse (n 21) 645. 27 Y Mounk, The People v. Democracy: Why Our Freedom is in Danger and How to Save It (Harvard University Press, 2018) 51–52. 28 See, of course, F Fukuyama, The End of History and the Last Man (Free Press, 1992).

88  Justin Collings been decoupled in some places and might become decoupled elsewhere. In Mounk’s words: [L]iberal democracy – the unique mix of individual rights and popular rule that has long characterized most governments in North America and Western Europe – is coming apart. In its stead, two new regime forms are rising: illiberal democracy, or democracy without rights, and undemocratic liberalism, or rights without democracy.29

In Mounk’s scheme, a democracy can be either liberal (like Canada) or illiberal (like Hungary and Poland); and an undemocratic regime can be either liberal (like the European Union) or illiberal and thus a dictatorship (like Russia).30 His core insight is that, in its critique of the undemocratic elements of liberal regimes, populism harnesses a certain democratic energy. There is, Mounk suggests, something basically democratic about the populist challenge – even the Müllerian populist challenge – to technocratic elites. Therein lies populism’s peculiar attraction. And its peril. For in their assault on undemocratic liberalism, (Müllerian) populists attack the liberal elements alongside the undemocratic ones, thus replacing one imbalance with another31 – substituting illiberal democracy for undemocratic liberalism. The swap is dangerous, both in its own right and because populist governments tend in practice to remain illiberal but not democratic. Populists might well come to power through free and fair elections. But they might be content to retain power without them. The populist invocation of democracy is thus fraught with peril for both liberalism and democracy. B.  Populism v Democratic Constitutionalism Populists steer by the star of popular sovereignty, but they conceive of democracy in a particular way. (The same can be said of many elites. More anon.) They imagine political power ‘as the expression of the will of a cohesive majority’ – a majority understood in material rather than procedural terms.32 To Müller, Mounk, and many other critics, populism invokes popular sovereignty and majority rule in a profoundly anti-pluralist way. As Paul Blokker puts it, ‘populists situate sovereignty squarely in the nation or the people’.33 They seek ‘a return to, or a realization of, the past, that is, of a traditional order, based on ‘natural’ hierarchies related to ethnicity, family, and tradition.’34 The populist pursuit, then, is for what Nadia Urbinati calls ‘extreme majoritarianism’:35 populists, she says, push for a permanent majority. According to these critics, populists define democracy in identitarian rather than electoral terms. On these accounts, present majorities matter but are not synonymous

29 Mounk (n 27) 28. 30 ibid 36. 31 cf Walker (n 11) 533–34. 32 P Blokker, ‘Populism as a constitutional project’ (2019) 17 Int’l J Const L 535, 543–44. 33 ibid 550. 34 ibid 540. 35 See N Urbinati, ‘Populism and the Principle of Maojority’ in R Kaltwasser et al (eds), The Oxford Handbook on Populism (OUP, 2017) 571.

The People vs Democracy?  89 with ‘the  People’. The latter, broader category encompasses the past. It stands for the enduring nation – its traditions and its triumphs, its valour and its values. Because elites sometimes seduce, corrupt, or deceive the masses – and because they sometimes cheat outright – elections don’t always reflect the people’s will. Democracy and popular sovereignty align only when the authentic people find an authentic spokesperson. Democracy works when populists win. There is, of course, a certain ‘heads-I-win-tails-you-lose’ character to this conceit. But the important point is that such populists not only invoke democracy, they redefine it. That redefinition is (Müllerian) populism’s defining mark. All of this has consequences for liberal constitutionalism and for the rule of law. At least some populists downplay the constitution’s status as rigid, higher law.36 When such populists take power, their constitutional interventions are legion. They amend the Constitution frequently and dramatically.37 They flout constitutional norms with gusto. They collapse the distinction between ordinary politics and constitutional politics. They deny that law is separate from politics or from morality. They insist that law is inseparable from its extra-legal sources – from political power or societal bonds. As Blokker summarises, ‘The populist understanding of the law denies its closed, self-sufficient, and self-referential nature, and emphasizes the ultimately always already political nature of the law.’38 Many populists also deplore liberal legalism’s strong individualism, which, on their telling, erodes national unity.39 None of this, of course, makes populism per se inescapably authoritarian. Such casual equivalence is reductive.40 Populism’s relationship to constitutionalism is more complex, in part because populists in power often seek to harness the legitimacy conferred (in the eyes of outside observers) by constitutional forms, but also because populists often embrace the animating impulse of popular ­constitutionalism,41 defined by Larry Kramer, one of its champions, as a belief that ‘the people ­themselves’42 should not only supply the constituent (or constitution-making) power but should also exercise ‘active and ongoing control over the interpretation and enforcement of constitutional law.’43 Populists assert such control with a vengeance. And they do so, unsurprisingly, at the expense of constitutional courts. C.  Populism v Constitutional Justice Although many populists’ ‘critical attitude channels resentment against the constitutional status quo ante’ across the board,44 courts have often aroused populists’ especial ire. When populist governments came to power in both Hungary and Poland, 36 Blokker (n 32) 545. 37 ibid 546. 38 ibid 549. 39 ibid 550. 40 cf Walker (n 11) 525. 41 ibid 527. 42 This is the title of Kramer’s prominent book. See LD Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (OUP, 2004). 43 LD Kramer, ‘Popular Constitutionalism, Circa 2004’ (2004) 92 Calif. L. Rev. 959, 959. 44 Walker (n 11) 520.

90  Justin Collings they immediately made war on the constitutional court. In both countries, populist governments curtailed the Court’s independence and packed it with loyalists.45 In Hungary, after the ruling party, Fidesz, secured an impregnable two-thirds majority in Parliament, it made quick work of the constitutional court as a constraint on its rule.46 The dismantling began when the Government changed the nomination rules so that it could nominate constitutional judges without the input of any other party. It then stripped the Court of jurisdiction in sensitive fiscal areas. Finally, it packed the Court by raising the number of justices from eight to 15. In a moment, sighs one observer, ‘[t]he once powerful and highly respected Court … disappeared from the political scene’.47 Populists pursued a parallel pattern in Poland. The ruling Law and Justice (PiS) party packed the Constitutional Tribunal with party sympathisers, altered the rules so that only a two-thirds supermajority of the Tribunal can pronounce a law unconstitutional, and injected a mandatory six-month delay between the filing of a constitutional petition and the Constitutional Tribunal’s judgment.48 The upshot, as one scholar starkly puts it, is that the Tribunal ‘as a mechanism of constitutional review … ceased to exist’. In its place, ‘a reliable aide of the government and parliamentary majority was born’.49 But populists like these don’t just oppose courts as a check on what they’d like to do. They oppose them more fundamentally as a rival to their assertion of a moral monopoly on representation. Constitutional courts and populist politicians both speak in the name of the People. Populists claim to speak in the People’s name exclusively. Both claims cannot be valid: the competing conceptions of the People could hardly be more different. Those competing conceptions make courts and populists inescapable rivals and implacable foes. On the populist view, there is little need for constitutional justice so long as populists are in power. The authentic people need no protection against themselves.50 When the European Commission began Article  7 proceedings against Poland in response to PiS’s judiciary reforms, PiS defended those reforms on the ground that the judiciary had transgressed its institutional bounds and lost touch with the people. The government said the reforms were needed to redress an ‘imbalance of powers’ and to counteract ‘the peculiar bureaucratic corporate culture which has emerged in the Polish administration of justice. Citizens’, the statement continued, ‘view the courts as a closed community that is very difficult to access’. They ‘consider [judicial] procedures to be complex and incomprehensible’. The Government further deprecated what it called a ‘cult of formalism’, according to which ‘it is more important that a judgement be justified on formal grounds than for it to be actually fair’.51

45 B Bugarič, ‘Central Europe’s descent into autocracy: A constitutional analysis of authoritarian populism’ (2019) 17 Int’l J Const L 597, 605. 46 That majority is the result of rule-rigging. The party’s share of the popular vote is much smaller. 47 Bugarič (n 9) 606. 48 ibid. 49 Sadurski (n 8) 35. 50 A Arato, ‘Populism, Constitutional Courts, and Civil Society’ in C Landfried, Judicial Power: How Constitutional Courts Affect Political Transformations (CUP, 2019) 318, 332. 51 In Blokker (n 32) 541.

The People vs Democracy?  91 By  taming the judiciary in the People’s name, the government purported to bring the law closer to the people themselves. Indeed, the crux of Poland’s constitutional crisis has been PiS’s insistence that the Government or the Parliament, as the People’s representative and spokespersons, rather than the constitutional tribunal, should have the final word on what the Constitution means.52 It has been a clash, in other words, of rival institutional claims – between a populist variant on popular constitutionalism and the traditional credo of strong-form judicial review. It is a clash, as well, between the liberal-constitutionalist redefinition of democracy and the rival reconceptualisation of the populists. III.  CONSTITUTIONAL ANXIETIES: BACK TO BӦCKENFӦRDE AND BICKEL

Unsurprisingly, the confrontation has put defenders of constitutional liberalism on edge. The modern mood of such defenders (and, again, I am a defender) has ranged from unsettled alarm to acute despair. Populism, as a book like the present one attests, has touched a nerve. Part of the reason is obvious. An institution, constitutional judicial review, that many liberal constitutionalists cherish (and spend their lives and earn their livelihoods assessing and expounding) stands embattled in some jurisdictions, battered in others, and broken in others still. But alarm about the fate of constitutional justice specifically and constitutional liberalism more generally is also attended by deep-seated anxieties about the nature of the institutions at bay. As Neil Walker has written, perhaps ‘the preoccupation [with populism] betrays a wider and more long-standing anxiety with the condition of modern constitutionalism’.53 The anxiety stems conceptually from a pair of gauntlets thrown down more than 50 years ago by a pair of youthful titans, one in Germany and one in the US. Ernst-Wolfgang Bӧckenfӧrde was 37 years old when he first published his famous ‘dictum’ in 1967. ‘The liberal, secular state’, he wrote, ‘depends upon conditions that it cannot itself guarantee’.54 If it tried to guarantee them, it would cease to be liberal. But if it failed to guarantee them, it might not survive. That was the great dilemma – ‘the great wager’, as Bӧckenfӧrde put it, ‘undertaken for the sake of freedom’.55 In recent years, countless commentators have highlighted the painful precariousness of the Bӧckenfӧrdean conditions. As Yascha Mounk notes, ‘the survival of stable democracies has always depended on the willingness of major political figures to play by the basic rules of the game’.56 It has also depended on the readiness of voters to punish them if they don’t. Both of these conditions now look fragile. Popular commitment to the democratic rule of law appears to be on the retreat. Politicians’ willingness to bend or break basic rules appears to be on the offensive. ‘Paradoxically’, writes 52 Blokker (n 32) 548. 53 Walker (n 11) 529. 54 E-W Bӧckenfӧrde, ‘Die Entstehung des Staates als Vorgang der Säkularisation’ in Säkularisation und Utopie. Ehebracher Studien, Ernst Forsthoff zum 65. Geburtstag (Kohlhammer, 1967) 75, 94; for an English version, see E-W Bӧckenfӧrde, ‘The Rise of the State as a Process of Secularization’ in M Künkler and T Stein (eds), E.W. Bӧckenfӧrde, Religion, Law, and Democracy: Selected Writings (OUP, 2020). 55 ibid. 56 Mounk (n 27) 242.

92  Justin Collings Bojan Bugarič, ‘constitutional democracy can play its “counter-majoritarian” role only when a majority of the people believe that it is the only game in town’.57 In many places, it is no longer clear that most people believe this. When Bugarič writes of constitutionalism’s ‘counter-majoritarian’ role, he is speaking, of course, in terms made famous by Alexander Bickel. Like Bӧckenfӧrde with his dictum, Bickel was 37 when he published The Least Dangerous Branch and articulated with imperishable precision his (or rather constitutional justice’s) ‘counter-majoritarian difficulty’.58 Yes, Bickel admitted, governance in the US is complicated, and existing legislative procedures don’t always or perfectly reflect the people’s will. But, he insisted, ‘nothing in the further complexities and perplexities of the system … can alter the essential reality that judicial review is a deviant institution in the American democracy’.59 Indeed, by Bickel’s logic, constitutional judicial review is a deviant institution in any democracy. Martin Shapiro puts the point with uncompromising bluntness: [M]any people who like democracy also like judicial review, [but] try as many of them might, it is not possible to render the two compatible. Constitutional judicial review inevitably involves a small number of unelected men and women making public policy or blocking public policy made by the people or their elected representatives. Democracy means public policy made by the people or their representatives. … [J]udicial review is always a cost to democracy, … it is public policy making by other than the demos, that is the people.60

Unless, that is, you reconceive the demos and redefine democracy. And this, in fact, is what many of judicial review’s defenders have done and continue to do. In the face of the populist challenge to constitutional justice, some seem to be redoubling their efforts. Those efforts seem driven, at least in part, by a pair of contrapositive fallacies: (1) because democracy is good, anything that is not democracy must be bad; and (2) because democracy is good, anything else that is good (such as judicial review) must be somehow democratic. The more democratic, the better and (ergo?) the better, the more democratic. The logic is loopy, but the underlying anxiety is real. Despite complacent pronouncements that the case for strong-form judicial review has already won the day,61 there remain powerful opponents who are not populists by anyone’s definition.62 More pressingly, some who are populists by everyone’s account attack constitutional courts without reprieve and justify their assault in democratic terms. In response, the effort to show that constitutional courts enrich democracy rather than displace it proceeds apace. The rest of this chapter will review and critique that effort. 57 Bugarič (n 9) 600. 58 Bickel (n 1) 16–17. 59 ibid 17–18. 60 M Shapiro, ‘Judicial Power and Democracy’ in Landfried (n 50) 21, 21–22. 61 See M Kumm, ‘On the Representativeness of Constitutional Courts: How to Strengthen the Legitimacy of Rights Adjudicating Courts without Undermining their Independence’ in Landfried (n 50) 281, 282. 62 See eg J Waldron, ‘The Core Case against Judicial Review’ (2006) 115 Yale LJ 1346; R Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Harvard University Press, 2004); R Bellamy, Political Constitutionalism: A Republican Defense of the Constitutionality of Democracy (CUP, 2007).

The People vs Democracy?  93 IV.  DEFENDING JUDICIAL REVIEW BY REDEFINING DEMOCRACY

The most prominent efforts to justify judicial review by redefining democracy came in the latter part of the twentieth century from three towering figures of legal and political thought: Ronald Dworkin, John Rawls, and Jürgen Habermas, all of whom offered ‘thick’ accounts of democracy. Dworkin and Rawls defended representativedemocracy-plus-constitutional-judicial-review as somehow more democratic than representative democracy on its own. Habermas provided the premise of a thick account but left the conclusion in favour of judicial review to his successors. Dworkin struck first. Famously boosting constitutional courts as ‘forums of principle’, Dworkin argued that, in some settings, ‘individual citizens may be able to exercise moral responsibilities of citizenship better when final decisions are removed from ordinary politics and assigned to courts, whose decisions are meant to turn on principle, not on the weight of numbers or the balance of political influence’.63 Dworkin dismissed majoritarian democracy as mere ‘statistical democracy’.64 The ‘majoritarian conception of democracy’ was not, for Dworkin, ‘a defensible conception of what true democracy is’.65 ‘[T]rue democracy’, he wrote, ‘is not just statistical democracy, in which anything a majority or a plurality wants is legitimate for that reason, but communal democracy, in which a majority decision is legitimate only if it is a majority within a community of equals’.66 True democracy. It was a telling turn of phrase. It pitted the real (communal) people against mere (statistical) democracy. The People v Democracy, in other words. Dworkin (and others before him) thus inverted the populists’ game before they ever started playing it. Constitutional judicial review, for Dworkin, was a sine qua non of true democracy. Dworkin characterised the judicial vindication of fundamental rights as a matter of principle, whereas determinations left to ordinary politics involved mere questions of policy.67 As an arena of policy, moreover, electoral politics was beset by bids for power, seedy motives, and ‘compromises that may subordinate issues of principle’.68 Decisions by a constitutional tribunal, by contrast, could launch ‘a sustained national debate … in newspapers and other media, in law schools and classrooms, in public meetings and around dinner tables’.69 Such debates, Dworkin implied, were more republican – indeed more democratic – ‘than almost anything the legislative process on its own is likely to produce’.70 But beyond the quality of debates, Dworkin was unabashedly focused on outcomes. His account was relentlessly consequentialist. ‘I  see no alternative’, he wrote, ‘but to use a result-driven rather than a procedure-driven standard for deciding [institutional questions]. The best institutional structure’, he concluded, ‘is the one best calculated to produce the

63 R

Dworkin, Freedom’s Law: The Moral Reading of the Constitution (OUP, 1996) 30. 364. 65 ibid 31. 66 ibid 364. 67 R Dworkin, Taking Rights Seriously (Harvard University Press, 1977) 90. 68 Dworkin, Freedom’s Law (n 63) 30. 69 ibid 345. 70 ibid. 64 ibid

94  Justin Collings best answers to the essentially moral question of what the democratic conditions actually are, and to secure stable compliance with those conditions’.71 Dworkin was confident that he knew what those ‘best answers’ were, and that constitutional judges would reach them more often than elected officials in governments or legislatures. John Rawls was similarly bullish on judges. Rawls, like Dworkin, looked askance at legislatures. For Rawls, as for Dworkin, a constitutional court’s counter-majoritarian role was not ‘straightforwardly antidemocratic’.72 Instead, constitutional courts protected higher law ‘from being eroded by the legislation of transient majorities, or more likely, by organized and well-situated narrow interests skilled at getting their way’.73 By contrast to such legislative venality, constitutional judges were paragons of public reason. ‘[T]he court’s role’, Rawls wrote, ‘is not merely defensive but to give due and continuing effect to public reason by serving as its institutional exemplar’.74 And since public reason embodied the shared beliefs and reason of those who compose the democratic polity, what could be more democratic than public reason’s ‘institutional exemplar’? Whereas Dworkin focused on outcomes and Rawls on reasons, Habermas combined the two in an emphasis on public discourse. Habermas offered what Christine Landfried has called a ‘genuinely proceduralist understanding of democracy’, one centered on the ‘discursive level of the public debates’ and on the capacity of public discourse to rationalise political power.75 Habermas linked democratic procedures to the expectation of reasonable results.76 Although Habermas himself was sometimes sceptical of judicial review,77 he has inspired defences of judicial review rooted in its purported power to elevate public discourse and tame political power.78 Many have followed Dworkin, Rawls, and Habermas in suggesting that constitutional judicial review makes democracy more democratic. Such defences have tended to proceed in two steps – the first highlighting the democratic shortcomings of majority representation, the second extolling the democratic virtues of constitutional review. In the first respect, many writers stress that representative democracy is not always representative. Electoral decisions, for example, are not always taken by real majorities. Fifty-two per cent of those who voted in the Brexit referendum chose leave, but only 72 per cent of eligible voters voted at all. This means that only 30 per cent of the electorate opted to leave – a momentous choice made by a decided minority. Some 62 million Americans voted for Donald Trump in 2016 – about 45 per cent of votes cast by about 58 per cent of voting-age citizens: barely over a quarter of the electorate. Turkey’s president, Recep Tayyip Erdoğan, was elected in 2014 with a 52 per cent share of a 76 per cent turnout. Thus, fewer than 40 per cent of eligible voters supported the man that introduced sweeping constitutional change in 2016.79 71 ibid 34. 72 J Rawls, Political Liberalism (Columbia University Press, 1993) 233–34. 73 ibid 233. 74 ibid 235. 75 C Landfried, ‘Introduction’ in Landfried (n 50) 1, 5. 76 See J Habermas, Between Facts and Norms (The MIT Press, 1996) Ch 7. 77 ibid 253–66. For an in-depth look, see MG Specter, Habermas: An Intellectual Biography (CUP, 2010). 78 See eg Landfried (n 75). 79 Many of the examples noted in this paragraph are discussed in Sabino Cassese, La democrazia e i suoi limiti (Mondadori, 2017) 5–6.

The People vs Democracy?  95 More fundamentally, regardless of how many voters support their accession, legislative majorities and executive authorities don’t always wield power in accordance with majoritarian wishes. Legislators spend most of their time mingling with lobbyists, donors, and various social and cultural elites. As a result, they are ‘increasingly insulated from the popular will’.80 One empirical study found that congressional decision-making in the US is powerfully influenced by economic elites and narrow interests but barely touched by the views of ordinary citizens. ‘When the preferences of economic elites and the stands of organized interest groups are controlled for’, the authors conclude, ‘the preferences of the average American appear to have only a miniscule, near-zero, statistically non-significant impact upon public policy’.81 ‘In the United States’, it seems, ‘the majority does not rule’.82 The problem is exacerbated in other countries by the weakness of political parties. As Jan Komárek writes, ‘parliaments today not only do not represent but do not govern either. Representative democracies’, he maintains, ‘became “hollowed” as the institutions that had mediated the relationship between the society and the state, especially political parties, have lost their significance and bec[o]me empty shells’.83 Such legislative shortcomings create an opportunity for constitutional courts to play a paradoxically representative role. Thus, in his influential history of the US Supreme Court and public opinion, Barry Friedman argues that because political parties are more polarised than the American people, the Supreme Court often tracks popular preferences more closely than either major party in power.84 A similar dynamic plays out elsewhere, such as when the Canadian Supreme Court invalidated criminal sanctions for abortion in 1988 – a result, polls suggested, that 75 per cent of Canadians favoured but that elected officials couldn’t or wouldn’t bring to pass.85 Because legislatures don’t always express majority wishes, Luís Roberto Barroso and Aline Osorio contend that courts can play a role that is both representative and ‘counter-legislative’.86 In a second step, champions of judicial review who take their cue from Dworkin, Rawls, and Habermas stress the deliberation-enriching and rationality-enhancing character of constitutional justice. Thus, Christine Landfried suggests that ‘judicial review allows for a method of reflecting on social integration that differs from the mode of politics and, precisely because of the difference between judicial and political decision-making, increases the overall rationality of democratic governance’.87 In Landfried’s view, constitutional judicial review deepens the complexity of governance structures by offering an additional layer of deliberation based on legal methods of decision making. She is careful, however, to insist that judicial methods are not

80 Mounk (n 27) 77. 81 M Gilens and B Page, ‘Testing Theories of American Politics: Elites, Interest Groups, and Average Citizens’ (2014) 12 Perspectives on Politics 564. 82 ibid 576. 83 J Komárek, ‘Rethinking constitutionalism and democracy … again?’ (2019) 17 Int’l J Const L 992, 994. 84 See B Friedman, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution (Farrar, Straus and Giroux, 2009). 85 L Roberto Barroso and A Osorio, ‘Democracy, Political Crisis, and Constitutional Adjudication: The Leading Role of the Brazilian Supreme Court’ in Landfried (n 50) 163, 178. 86 ibid 176. 87 Landfried (n 75) 4.

96  Justin Collings better than political ones, just different.88 ‘Constitutional courts’, she concludes, ‘can potentially enhance the discursive level when they listen to the arguments of persons involved in concrete cases, when they debate in judicial public hearings with representatives of politics and society about the constitutionality of specific policies, and when they interact with other courts’.89 They can thus ‘contribute to the “discursive level of public debates” (Habermas) and thereby to a more reasonable outcome of democratic politics’.90 On Landfried’s account, constitutional adjudication can be a resource for democratic governance, rather than a risk, so long as judicial decision making differs from political decision-making.91 Andrew Arato offers a similarly thick account of democracy. His, too, is inspired by Habermas and Rawls. Arato stresses the need for alternative conceptions of democracy, richer and more nuanced than monolithic majoritarian doctrines of popular sovereignty.92 A democracy, he insists, ‘ought not and cannot work through a single channel of representation’.93 Drawing on the work of Pierre Rosanvallon, Arato argues that representative democracy needs to be supplemented by other democratic inputs, which Rosanvallon calls (paradoxically) ‘counter-democracy’.94 Arato advocates the ‘plurality of democracy’, insisting that parliamentary representation is a necessary but insufficient condition for true democracy. There are, he maintains, other avenues of representation. An extremely important avenue runs through the courts, which sometimes reflect actual majority preferences better than parliaments. For Arato, some of the most important democratic inputs come from civil society, which, in Arato’s telling, is central to true democratic governance. But legislatures, he notes, aren’t always receptive to civil society movements and inputs.95 Courts, by contrast, sometimes do better. Indeed, ‘one of the most important democratic channels are … the courts, which can be and are often utilized by civil society-based initiatives’.96 ‘When representation through election fails’, Arato concludes, ‘courts yield a second democratic channel that becomes all the more important under a populist government’.97 Mattias Kumm offers yet another thick account of the democratic basis for constitutional judicial review. Kumm defends judicial review as ‘a forum of legally institutionalized Socratic contestation’ in which the core right vindicated is the citizen’s right to be offered legitimate reasons for government acts that infringe her interests.98 On Kumm’s account, the proportionality framework (which dominates constitutional adjudication virtually everywhere except in the US) forces public authorities ‘into a process of reasoned engagement … that they might have 88 ibid 5-6. 89 ibid 6. 90 ibid 17. 91 ibid. 92 Arato (n 50) 337. 93 ibid. 94 See P Rosanvallon, Counter-Democracy (CUP, 2008). 95 See Arato (n 50). 96 ibid 336. 97 ibid 338. 98 M Kumm, ‘Institutionalising Socratic Contestation: The Rationalist Human Rights Paradigm, Legitimate Authority and the Point of Judicial Review’ (2007) 1 Eur JL Stud 153, 165.

The People vs Democracy?  97 otherwise resisted’.99 In the process, it drives unsavoury and illicit motives – such as those rooted in animus, prejudice, or unreasoned tradition – underground. Kumm’s stance has a certain Rawlsian hue in its insistence that not all reasons count and its conviction that judicial review plays an indispensable role in smoking out the bad ones. Tom Hickey similarly celebrates judicial review’s capacity to banish bad reasons, but he insists that this quality inheres in republican procedural values and doesn’t rely at all on the belief, which Hickey ascribes to Dworkin and Rawls, that constitutional judges possess special virtue or wisdom.100 All these ‘thick’ accounts of democracy contend that ‘democracy’ means more than free and fair elections for a representative legislature and government. On these accounts, judicial review does not constrain democratic governance, but rather enriches it by demanding better reasons, driving better results, elevating the polity’s ‘discursive level’, or by granting a more vivid and validating voice to ‘the People’, however vaguely defined. V.  CONCLUSION: WHICH ‘PEOPLE’ V WHICH ‘DEMOCRACY’?

And therein lies the rub. For in pointing to some ‘true’ or ‘authentic’ democracy above and beyond the representative channels of electoral politics, these defenders of judicial review are implicitly (and probably unwittingly) playing at the populists’ game. And they are doing so from an uncomfortably arrogant position that seems calculated to invite populist counterattacks. These ‘thick’ definitions of democracy conceive of the people as something transcending the formal structures of electoral democracy, whether parliamentary or presidentialist. In a way, they all pit a ‘thick’ imaginary of ‘the People’ against a ‘thin’ functionary of democracy. In a sense, and in that sense not unlike their populist opponents, they posit The People v Democracy – that is, they pit their own moralised (or proceduralised) version of ‘the People’ against ‘democracy’ of the ordinary, electoral, statistical, majoritarian sort. They play the game, to be sure, with great sophistication and finesse. But it is a dangerous game – one that perhaps has contributed to the backlash against constitutional courts now on painful display in many lands. I contend that defending judicial review as somehow more democratic than democracy is conceptually muddled and practically dangerous. It is conceptually muddled because it mysticises ‘the People’ beyond the recognised rules of the political game. This is true both of those ‘democratic’ defences of judicial review that claim that it produces better outcomes (because of the rationalising effect of judicial discipline) and of those that assert that it fosters a richer public sphere (because of its supposedly greater sensitivity to inputs from civil society). Decisions by unelected officials can never be more democratic simply because they are better, either in their reasoning or in their result. One of the classic defences of democracy is the faute de mieux defence: there’s no better way to decide who gets to decide. The whole point is



99 ibid.

100 T

Hickey, ‘The Republican Core of the Case for Judicial Review’ (2019) 17 Int’l J Const L 288.

98  Justin Collings that we need democracy to decide collectively which reasons are persuasive and what results are best. The notion that courts sometimes do a better job than legislatures of implementing the people’s wishes is no less problematic. That might go a long way toward explaining why people put up with judicial power, but it doesn’t make those exercises more democratic. You might be less likely to rebel against an arranged marriage if you like the spouse your parents choose. Your parents might even choose someone who suits you better than the person you might have chosen for yourself. But I don’t know many democrats who, given the choice, would vote for arranged marriages – even if they were confident that their matchmakers would choose well and even if they were allowed to choose the people who chose their matchmakers. Certainly, they would not characterise the arranged marriage regime as a democratic one, or one that honoured their wishes. Redefining democracy is practically dangerous because it invites rival redefinitions. It invites the very sort of moralised imaginaries that populists put forth and liberals regard with such dismay. The fact that many polities have embraced nondemocratic institutions while maintaining that those institutions were bulwarks of ‘true democracy’ might well have triggered some of the backlash that has many liberals rightly alarmed. What, then, is to be done? ‘Democracy’, writes Yascha Mounk, ‘has nearly as many definitions as there are political thinkers’.101 Now that constitutional lawyers have gotten in on the game, this is probably an understatement. But surely the best definition of democracy will be one that can be immediately understood by most members of the demos. A definition accessible only to sophisticated elites is sure to rouse suspicions that those elites are up to something. And so I favour a thin, ‘majoritarian’ definition of democracy and a defence of judicial review that openly admits its counter-majoritarian conundrum rather than defining it away or dismissing it as ‘mainly bogus’.102 ‘[O]ur support for judicial review’, Mounk writes, ‘should not blind us to its nature: the simple truth is that it takes many issues on which ordinary people have strong opinions out of political contestation.’103 ‘It’s perfectly reasonable’, Mounk continues, to think that, say, protecting sexual or religious minorities from discrimination is so important that it justifies overriding the will of the people. But if that is the case, intellectual honesty demands that we acknowledge the nature of the institution to which we are so committed: though it often sets itself against the popular will, we might then say, judicial review is justified by the fact that it protects individual rights and the rule of law.104

The best approach, then, is to do what constitutional courts do when they apply the far-famed proportionality test: bring all the relevant values into the open, place them together on the scales, and seek a sensible equilibrium. In this respect, it is worth recalling that whenever we describe a polity as a ‘democracy’ we are employing



101 Mounk

(n 27) 92. (n 50) 338. 103 Mounk (n 27) 73. 104 ibid 73. 102 Arato

The People vs Democracy?  99 another form of synecdoche: we are substituting a part for the whole.105 Democratic institutions – representative parliaments or elected governments – might compose the heart of such polities. But not every institution in such polities is or should be democratic. We needn’t be taken in by our own rhetorical figures. The non-democratic institutions, such as constitutional judicial review, should be taken on their own terms and should, in those terms, be justified. What we need is a forthright explanation of why the costs to democracy are worth paying, not a subtle elaboration of why they aren’t really costs to democracy at all. Similarly, if courts are to go on adjudicating ‘in the name of the people’, they (and their defenders) should be clear about what this means. They should not, à la populisme, mystify the people as the embodiment of virtue, justice, and moral reasoning. They should make clear – as constitutional dualists from Hamilton and Marshall to Kelsen and Ackerman have always made clear – that they are speaking ‘in the name of the People’ in either its original, constituent capacity or in its representative, constituted capacity. When the two collide, the former prevails. But courts must be able to present that triumph convincingly as an implementation of the People’s constituent will. They must persuasively show that they are enforcing in good faith an earlier exercise in popular sovereignty. That is harder to do the more creative the judges get and the further they stray from the constitutional text, history, and structure – and this without minimising the inescapable ambiguity of legal texts and the unavoidability of judicial creativity. All of this counsels in favour of judicial caution and against constitutional adventurism. Courts would do well to regard constitutional texts as grants of judicial authority – some sweeping and clear, but many modest and vague. In the absence of a clear mandate, courts should tread carefully. This is not a call for unstinting deference and abdication; only for more of the most quintessentially judicial skills: balance and judgment. It is a call increasingly sounded by the friends of judicial review106 – a call informed, in recent times, by sad experience. In Hungary, where the backlash against constitutional judicial review has been fierce, the Constitutional Court was unusually aggressive in its earliest years. In 1991, for instance, it invalidated 19 per cent of the statutes and 47 per cent of the decrees it reviewed.107 Later, in a span of just five years, the Hungarian Court invalidated parliamentary inaction some 260 times.108

105 See Cassese (n 79) 27. 106 See Jakab (n 9) (warning that ‘over-constitutionalization’ is both dangerous and counter-productive); M Volcansek, ‘Judicialization of Politics or Politicization of the Courts in New Democracies?’ in Landfried (n 50) 66 (‘[C]onstitutional courts that push the margins of their authority aggressively may lead to the politicization of the courts, which may, in turn, result in an erosion of judicial legitimacy, particularly in new democracies.’); M Rosenfeld, ‘Judicial Politics versus Ordinary Politics: Is the Constitutional Judge Caught in the Middle?’ in Landfried (n 50) 62 (‘The main danger stemming from taking the constitutionalization of politics too far is the unleashing of an excessive politicization of the Constitution that tends to blur the proper boundary between ordinary and judicial politics.’); Mounk (n 27) 97 (‘A system that dispenses with individual rights in order to worship at the altar of the popular will may ultimately turn against the people. Conversely, a system that dispenses with the popular will in order to protect individual rights may ultimately have to resort to increasingly blatant repression to quell dissent.’); Landfried (n 75) 16; D Grimm, ‘What Exactly Is Political about Constitutional Adjudication’ in Landfried (n 50) 317. 107 See A Sajó, ‘Reading the Invisible Constitution’ (1995) 15 Oxford J. L. Studies 253. 108 Volcansek (n 106) 70.

100  Justin Collings One  needn’t at all sympathise with that Court’s populist eviscerators to worry that supercharged judicial aggression might, in time, pave the path toward judicial impotence. Let me close, then, by summarising two hard truths to which friends of judicial review (myself included) would do well to attend. The first is that it is better to balance democracy and liberal constitutionalism than to conflate them. The tension between the two is inherent, inescapable, and ineradicable. It will never go away. Trying to define it away through conceptual sleight-of-hand only makes mischief and squanders credibility. It is a logical fallacy to posit that because democracy is good everything that is good must also be democratic. Democracy is a good. It is not the only good or even the ultimate good. It is, by design, a penultimate good. Its purpose is to allow people (including the People) to identify the ultimate good for themselves. Untrammeled democracy, by contrast, is not a good. Democracy can’t exist without losers, so the system should be designed with the losers in mind. A democracy should reward the winners without crushing the losers. Constitutionalism, says Bill Eskridge, exists to lower the stakes of (ordinary) politics.109 Its purpose is to prevent any faction from capturing the state and shattering their foes. ‘That, at any rate’, to quote Holmes out of context, ‘is the theory of our Constitution. It is an experiment, as all life is an experiment’.110 It is an experiment in optimisation and equilibrium – a perennial balancing act between the people’s capacity to act collectively and each person’s right to act (and be left) alone. The second hard truth is that we must abandon the notion that constitutional courts can right all injustices or remedy all harms – or even that they can cure all (or most) democratic shortcomings. That notion is misguided for at least three reasons: (1) it exaggerates and distorts what constitutions are meant to do, (2) it skews the balance between constitutionalism and democracy, and (3) it may trigger backlash. The proper response to the populist critique of constitutional justice is to recognise that they have half a point while insisting that it is only half a point. The proper response is to recalibrate the imbalances that constitutional justice has sometimes introduced between democracy and constitutionalism, but also to insist that the imbalances introduced by populists are often much greater and much worse. As Neil Walker observes, ‘to criticize the other side for bias without being mindful of one’s own bias combines caricature with a lack of self-awareness, and with a failure to appreciate that all constitutional approaches founder if they do not respect constitutionalism’s precarious internal balance’.111 Accordingly, Walker continues, ‘populists can be rightly and emphatically criticized for a one-sidedness about the nature of constitutional well-being in their own critique of the one-sidedness of the “liberal establishment”’.112

109 William N. Eskridge, ‘Pluralism and Distrust: How Courts Can Support Democracy by Lowering the States of Politics’ (2005) 114 Yale LJ 1279, 1293–94. 110 Abrams v. United States, 250 U.S. 616, 631 (Holmes J dissenting). 111 Walker (n 11) 533. 112 ibid 533–34.

The People vs Democracy?  101 By all means, then, let us criticise the populists and, if needed, do so emphatically. But let us also realise that the proper response to a clash between ‘the People’ and ‘democracy’ is to define both terms with precision, weigh all the relevant values, and seek to optimise them in a stable equilibrium. ‘The People’, defined as liberal constitutionalism, and ‘democracy’, defined as representative government, need one another. Very likely need other things as well. But we needn’t compound Bӧckenfӧrde’s dilemma by denying Bickel’s.

102

7 Proceduralising the People: Deliberative Democracy, Majority Rule and the Rule of Law SIMONE CHAMBERS*

I. INTRODUCTION

I

n this chapter, I outline a deliberative democratic reading of the relationship between the rule of law and the exercise of democratic self-government. This relationship begins with a procedural premise that there is no popular will without the rule of law. On this view then the extent to which majorities, or elite actors who claim to speak on behalf of the people, set out to dismantle the rule of law, they are dismantling the procedural conditions that give force to the claim to be exercising popular sovereignty. The critical and normative force of this position, however, depends a great deal on what one considers to be the procedural conditions that underwrite democratic self-government. If competitive elections are considered the democratic procedure, then only outcomes that make a direct assault on democratic elections, say by limiting the franchise, criminalising opposition parties, or cancelling elections, clearly fall a foul of the procedural rules. These are extreme cases of frontal attacks on democratic procedures. I am more interested in cases in which the outcomes of competitive elections are used to alter or weaken the rule of law (attacking the separation of powers, weakening the judiciary, strengthening the executive, and most problematic discrediting dissent and opposition as undemocratic) and send regimes in an increasingly authoritarian direction all in the name of strengthening democracy and pursuing the will of the people.1 In these cases, procedural views of democracy that are focused on the rules of majority voting will often have to admit an inherent tension between democracy and the rule of law.

* University of California, Irvine. 1 The cases I have in mind are, eg, Hungary, Turkey, Poland, and Venezuela. See S Chambers, ‘Democracy and Constitutional Reform: Deliberative Versus Populist Constitutionalism’ (2019) 45 Philosophy and Social Criticism 1116; KL Scheppele, ‘On Being the Subject of the Rule of law’ (2019) 11 Hague Journal of the Rule of Law 465.

104  Simone Chambers On these narrow electoral views, democratic majorities are limited by, rather than constituted by, the rule of law. In contrast to election focused views of democracy, deliberative democracy offers a more robust view of the procedures that constitute democratic self-government. In the course of this chapter, I hope to show that the robust proceduralism of deliberative democracy has a number of advantages over more minimal and formal alternatives. Why is it important to show that assaults on the rule of law are assaults on democracy and not simply assaults on liberalism? Many contemporary populist regimes thrive on and exploit the distinction between democracy and liberalism. They embrace and own labels like illiberal democracy.2 They justify their actions by claiming to be perfecting democracy and correcting an imbalance between liberalism and democracy. To the extent that we employ conceptions of democracy that also presuppose the division between democracy and liberalism we are endorsing the framework of their justifications. The view of democracy I outline and defend has four parts. First is a co-originality thesis that offers an argument for why one cannot separate democracy and liberalism. Second is a ‘post-sovereignty’ thesis in which ‘the people’ do not have a single identifiable unified will; rather popular sovereignty is disaggregated, exercised over time, and proceduralised in mechanisms of egalitarian inclusion. Third, this view of democracy places special emphasis on the public sphere as the locus of legitimacy rather than voting. Voting of course does not disappear and free and fair elections are a necessary part of any democratic order. But elections without the circulation of reasons, information, and justification (as well as criticism, dissent, and opposition) have significantly diminished legitimacy. The idea of ‘diminished legitimacy’ points to the final feature of this view: democratic legitimacy is not a dichotomous value but a continuous one. No set of democratic procedures perfectly meets the criteria of legitimacy. It is always a matter of more or less. I begin, in the next section, with a discussion of proceduralism in democratic theory to distinguish deliberative proceduralism from majoritarian proceduralism. While the obvious difference between these two types of procedural theory is that they focus on two different procedures, deliberation, and voting, I suggest that many people misunderstand the difference between these two. Deliberation and voting are not competing methods of taking a decision because deliberation is not a decision rule and voting is not a way to decide how to vote. In democracies, most deliberation will need a vote to be decisive and, I argue, all votes need deliberation to be legitimate. Thus, in section two, I clarify the relationship between deliberation and voting and by extension consensus versus majority. With this preliminary discussion in place, I proceed to an exposition and defence of the four elements of deliberative proceduralism always keeping in the mind the goal of clarifying the place, role, and force of majorities in relation to the rule of law. At the end of the chapter, I introduce an illustration of how we might apply this framework in assessing the democratic legitimacy of referendums.

2 V Orbán, ‘Full text of Viktor Orbán’s speech at Băile Tuşnad (Tusnádfürdő) of 26 July 2014’ Budapest Beacon (26 July 2014).

Proceduralising the People  105 I must address one final point in this introduction. What do I mean by the rule of law? This is a notoriously difficult and contested concept. I do not wish to make any strong theoretical or essentialist claims about the rule of law. Instead, I simply note how I am using the term. Following Habermas, I use the rule of law synonymously with the idea of the modern constitutional state.3 In contrast to arbitrary, unpredictable, unstable, and despotic power, the rule of law is a rationalised legal order that is governed and structured by general, prospective, public, clear, and stable laws. ‘To be governed by’ implies a constitutional order of higher law that constrains ordinary law-making and the potential arbitrariness of majorities. Thus, some idea of the separation of powers and an independent judiciary with the power of judicial review is entailed by the rule of law, at least, in the way I am using the term. I also argue that dissent and opposition are essential elements in maintaining the rule of law because courts cannot do it all. II.  PROCEDURALISM AND DEMOCRATIC THEORY

Proceduralism is often contrasted to outcome-based views of democracy.4 But here we should be careful. There are very few purely outcome-based views of democracy and most of these have been fully discredited. A pure outcome-based view holds that democratic legitimacy is entirely determined by a certain set of outcomes independent of how those outcomes were arrived at. And so we see, for example, a number of Marxist regimes claim the mantle of democratic republics not because any democratic procedures were followed but because state policy is purported to embody the democratic equality of all citizens.5 And indeed it was this sort of outcome-based claim that inspired many early retreats into proceduralism.6 Within contemporary democratic theory, few people claim that democracy refers exclusively to a set of social and economic arrangements. We are all proceduralists in the sense that democracy is understood to involve, at a minimum, a set of procedures for making decisions or choosing social and economic arrangements. Thus, debates about procedure versus outcome are really debates about why we should value (or perhaps be suspicious of) this way of making decisions, that is, why we should value democratic procedures (however these are defined). For proceduralists the idea is to abstract from outcomes and look only at the intrinsic value or function of the procedure. For more outcome-based views, one values democratic procedures because they produce good outcomes; or conversely, one is suspicious of democratic procedures because they tend to (or can if not constrained) produce bad outcomes. Another way to express this distinction is through the question, do we value democratic procedures for reasons intrinsic to the procedure or for instrumental reasons?

3 J Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, W Rheg (tr), (MIT Press, 1996). 4 C Brettschneider, ‘Balancing Procedures and Outcomes Within Democratic Theory: Core Values and Judicial Review’ (2005) 53 Political Studies 423. 5 A benevolent liberal dictator would be equally problematic. 6 JA Schumpeter, Capitalism, Socialism and Democracy (New York, Harper Perennial, 1942).

106  Simone Chambers The two most discussed instrumental views are, first, an epistemic view that values democratic procedures because they tend to arrive at the truth or, more modestly, better solutions to public policy problems than other forms of decision-making;7 and, secondly, what I will call a Rousseauian view (but with no claim that this is based on an accurate interpretation of Rousseau) in which democratic procedures are valued because they produce a popular will.8 Both the epistemic as well as the Rousseauian claim are rejected by proceduralists. Let me focus for a moment on the second, popular will claim and circle back on the epistemic claim. Proceduralists in general challenge strong versions of the Rousseauian claim, especially as it is articulated in populist ideology, but they often do so on different grounds. Here I distinguish between minimalist, intrinsic, and deliberative proceduralism (which I will also call robust proceduralism). Minimalist proceduralists challenge the Rousseauian view primarily on empirical grounds. Democratic procedures, it is argued, specifically majority rule elections and plebiscites, simply cannot deliver a popular will because such a thing does not exist and aggregative procedures cannot construct it.9 Even claims that democratic procedures facilitate responsiveness to majority preferences is challenged by the new Schumpeterians who claim there is no empirical evidence of any such relationship between procedures and outcomes in contemporary democracies.10 Claims that democratic procedures facilitate, channel, or produce a popular or general will are rejected and in their place we find minimalist claims that democratic procedures are a method of choosing rulers that involves a competitive struggle to get people’s votes.11 Market competition and consumer choice are considered the appropriate analogies not a supra subject named ‘the people’ willing the common good. Schumpeter stressed the descriptive nature of this view of democracy and this in turn spawned a great deal of empirical political science that set out to identify regimes that have competitive elections as the defining feature of democracy.12 Some minimalists also add a normative argument that democratic procedures are to be valued because they replace violence and manage conflict.13 For many, minimalist proceduralism is too normatively thin to be attractive. Ironically, even though this tradition adamantly rejects populist/Rousseauian claims to produce a popular will, it has few internal defences against populist outcomes. Majorities do what they do and if populists win elections this outcome is no more or 7 E Anderson, ‘The Epistemic Dimension of Democracy’ (2006) 3 Episteme 8; D Estlund, Democratic Authority: A Philosophical Framework (Princeton University Press, 2008); H Landemore, Democratic Reason: Politics, Collective Intelligence, and the Rule of the Many (Princeton University Press, 2013). 8 Who holds this view? Populist politicians appear to appeal to something like this view in their rhetoric (see Chambers (n 1)) but it would be difficult to find a serious political theorist who held a crude popular will view. This is why, for example, minimalists like Achen and Bartels must refer to the ‘folk theory’ of democracy rather than cite any theorists. The Rousseauian view is to some extent the creation of critics of democracy. CH Achen and LM Bartels, Democracy for Realists: Why Elections Do Not Produce Responsive Government (Princeton University Press, 2017). 9 Schumpeter (n 6). 10 Achen and Bartels (n 8). 11 Schumpeter (n 6) 269. 12 G Mackie, “The Values of Democratic Proceduralism’ (2011) 26 Irish Political Studies 439. 13 A Przeworski, Crises of Democracy (CUP, 2019) 7; FA Hayek, The Road to Serfdom (University of Chicago Press, 1944) 52.

Proceduralising the People  107 less democratic than any other outcome.14 As Przeworski puts it, ‘populist parties are not anti-democratic in the sense that they do not advocate replacing elections by some other method of selecting governments’.15 Thus only frontal attacks on elections count as undermining democracy. As the category of ‘competitive authoritarianism’ suggests, even at a purely descriptive level, minimalist views of democracy seem unsatisfactory as a great deal of what might normally be considered anti-democratic behaviour is compatible with competitive elections.16 What I call intrinsic proceduralism offers a normatively more robust theory of democracy than minimalists. Like minimalist proceduralists, defenders of intrinsic proceduralism do not think that democratic decision-making produces substantively correct outcomes, and they are equally skeptical about ideas of the general will. But unlike minimalists, they believe that democratic procedures have significant moral value in themselves and this in turn leads to a more robust picture of the procedures themselves.17 Rather than channelling competition, democratic procedures are understood to instantiate equality by treating each citizen fairly, with respect, or as an autonomous or free agent. While minimalists point to the empirical fact that democratic procedures do not produce a collective will, intrinsic theorists are often motivated by a different set of concerns. They are particularly concerned with claims that democracy produces collectively good or epistemically better outcomes as they often see this as tying democratic legitimacy to contentious views of what counts as collectively good or epistemically better. As Nadia Urbinati likes to say, democracy gives citizens the right to be wrong: ‘Procedures are legitimately democratic because they deliver what they are made for: to protect the freedom of its members to produce “wrong” decision’.18 Jeremy Waldron argues that we should value democracy precisely because it involves a set of procedures that treats each with respect despite deep disagreement about ideas of the good, justice and truth.19 Although both Urbinati and Waldron think that informed deliberation preceding votes is to be encouraged, universal franchise voting and not deliberation is the democratic procedure that embodies the value and promise of democracy. I want to turn to deliberative democracy as a third variation on the proceduralist theme. The view departs from the first two in two significant ways. First, the procedures that constitute a democratic regime are expanded beyond free and fair elections and majority decision-making to encompass opinion and will formation as well as multiple and various institutional mechanisms through which that opinion and will impacts, determines, and shapes public policy decisions – voting being only one such mechanism. Secondly, procedures are defended both on intrinsic grounds (for example, that they embody respect for the equality of all citizens) as well as instrumental 14 C Mudde, ‘The Populist Zeitgeist’ (2004) 39 Government and Opposition 541. 15 Przeworski (n 13) 88. 16 S Levitsky and AL Way ‘The New Competitive Authoritarianism’ (2020) 31 Journal of Democracy 51. 17 MP Saffon and N Urbinati, ‘Procedural Democracy, the Bulwark of Equal Liberty’ (2013) 41 Political Theory 441; J Waldron, Law and Disagreement (OUP, 1999). 18 N Urbinati, Democracy Disfigured: Opinion, Truth, and the People (Harvard University Press, 2014) 98. 19 Waldron (n 17).

108  Simone Chambers grounds that, if working well, they produce epistemically better outcomes than nondemocratic procedures and that those outcomes are in some sense authored by citizens themselves. III.  DELIBERATION AND VOTING: CONSENSUS AND MAJORITIES

While it is true that deliberative proceduralists expand the category of democratic procedures beyond voting to include processes of opinion and will formation, it would be a mistake to think of deliberation and voting as two competing procedures of democratic decision-making. Deliberative democracy has sometimes been understood this way and as standing in opposition to aggregative democracy. What is central in the deliberative model are the reasons, justifications, and discussion that backup a decision, not simply the number of votes that support a decision. This is also sometimes thought to rest on a contrast between consensus versus majority as a decision rule. I want to suggest that the relationship between deliberative democracy and voting, on the one hand, and consensus versus majority decision rule on the other hand, has often been misunderstood. Deliberative democracy both as a model of face-to-face practice, say in a mini public or citizens’ assembly, as well as a broad paradigm to understand a full democratic system, has no problem with counting votes or with majority rule as a decision rule. Deliberative democracy’s issue with aggregation was not an objection to voting or counting votes; it was always an objection to democratic theory that focused exclusively on the vote, said nothing about the opinion and will formation the preceded the vote, and invested aggregation with the full weight of democratic legitimacy. Thus, not the practice of voting but the normative weight and role of voting was the target. Very generally, I take deliberation to mean the weighing of reasons or considerations in light of a practical decisions about what to do. Democratic deliberation involves the weighing of reasons or considerations in light of a practical decision we must take together as equals. This in turn involves certain procedural conditions that facilitate the weighing of reasons and consideration as equals. Deliberation, I want to insist, is not strictly speaking a decision rule, if by decision rule we mean how and when we stop deliberation and act on some chosen principle, policy, or practical conclusion. Deliberation is decision-oriented in that it is about taking a practical decision but it is not obviously a decision rule that dictates when a group has closure on a question and indeed many of our most important deliberations are about what rule we will choose to take various types of decisions. Now it might be thought that consensus is the default decision rule for deliberation. The thought here is that if the essential driving force of deliberation is the persuasiveness of arguments then the natural end of this sort of activity would be when everyone was persuaded or everyone was in agreement. There is a great deal of debate within deliberative democracy theory about whether consensus is the proper end or telos of deliberation with a number of theorists abandoning the  ideal.20 20 S Elstub and P McLaverty, ‘Introduction’ in S Elstub and P McLaverty (eds), Deliberative Democracy: Issues and Cases (Edinburgh University Press, 2014).

Proceduralising the People  109 But even for theorists who retain consensus as the telos of deliberation, this is understood as a regulative ideal that does not translate into either a default empirical decision rule nor a requirement that all participants take consensus as their subjective goal in real empirical encounters.21 I have three main reasons for this claim. First, as I have noted, the idea of a fully rational consensus is a regulative ideal. What this means is that the ideal can never be achieved in the empirical world but nevertheless we can and should use that ideal to regulate and guide our actions in this world. Thus, the regulative ideal gives us counterfactual standards against which we can evaluate better or worse practices and outcomes.22 But how does that evaluation work exactly? We do not have access to the substance of a rationally motivated consensus. Which is to say, we do not have independent access to what people would agree to; all we have are the ideal procedural conditions that would have to be in place for us to say that the outcome is a rationally motivated consensus. Thus, the regulative ideal does not furnish us with a clear goal towards which to strive as would an ideal of substantive economic equality for example. Instead the ideal points to constructing, as best we can, the procedural conditions that would give us confidence that the outcomes approach a rationally motivated consensus among equals. These are the procedures that maximise the equal inclusion of all voices, circulation of information, and the exchange of reasons. Our procedures will never be perfect (for example full and perfect inclusion will always be out of reach) and we as individuals will also never be perfect reasoners, thus all deliberations are in principle fallible, corrigible, and so open ended. But we do need to take decisions. And in mass democracies those decisions are often (and for good reason) taken in the form of majority voting. Although this might sound like voting is a sort of second best, a necessary evil because we cannot talk forever or as much as it would take to get a consensus, this too I think is mistaken view. Rather than seeing votes as failures to reach consensus, we should see votes as punctuating, for the purposes of action and reflection, an underlying ongoing process of democratic deliberation through which we collectively problem solve. Consensus is in principle and in practice never fully and perfectly achievable. A second reason why consensus is not a default decision rule for real world deliberation is that for many policy questions there will be reasonable disagreement among citizens. In these circumstances, majority voting may further the goals of deliberation more than a real-world consensus decision rule. Bernard Manin argues, for example, that with majority rule we have a public record that reflects that there were other reasons and arguments that were persuasive even if they did not win the day. ‘The process (majority voting) nevertheless institutionalizes the admission that there were also reasons not to desire the solution finally adopted.’23 We often need to be reminded of the minority view. Sometimes, even if the minority view did not persuade the majority, it nevertheless contained grains of truth or partial insights. Note that this defence of a majority over a consensus decision rule is premised on 21 M Neblo, ‘Family Disputes: Diversity in Defining and Measuring Deliberation’ (2007) 13 Swiss Political Science Review 527. 22 ibid. 23 B Manin, ‘On Legitimacy and Political Deliberation’ (1987) 15 Political Theory 359.

110  Simone Chambers good deliberation preceding that vote. Indeed, deliberation in which the minority feels like their case was addressed and honestly considered, is one of the strongest defences of majority voting.24 Finally, even if we operate with the regulative ideal of a rationally motivated consensus, this does not mean that individual citizens must take the achievement of an empirical consensus as their immediate purpose or motivation for every encounter that might further deliberation. First, having consensus as the end of real-world conversations can have perverse anti-deliberative effects by, for example, motivating people to suppress their arguments or go along with the majority even if they do not fully agree. Secondly, citizens who engage in contestation and disruptive demands to be heard do not appear to be seeking consensus in any immediate sense. But from a systemic point of view we might think that they are setting out to publicise the unfair conditions of the present political dialogue. Thus, standing up and challenging a false consensus is very much part of the deliberative repertoire. We can make sense of this action because we have an intuitive grasp of what an authentic consensus might look like. The ideal of deliberative democracy is compatible with and furthered by many different sorts of empirical decision rules even if the ideal itself points to consensus as a counterfactual telos and ideal of legitimacy. Judges, juries, legislators, and citizens are asked to vote all the time and deliberation would have little empirical impact without voting. But voting and majority rule without deliberation is, as Dewey put it, ‘as foolish as its critics charge it with’.25 This distinction between process and decision rule can be seen very clearly in the structure and design of deliberative mini publics. There are by now countless deliberative initiatives across the world that bring citizen together in a deliberative format to discuss issues and often (but not always) take a decision or perhaps issue a joint report.26 Voting is very common in these initiatives and can perform a variety of functions. Here are three examples. Voting can be a mechanism of deliberation itself when used as straw polls to take stock of the shifting options. There is empirical evidence that frequent votes punctuating ongoing deliberation can have a positive effect on the quality, reflectiveness, and inclusiveness of deliberation by, for example, reminding participants that there are dissenters whose concerns need to be addressed.27 A second function of voting is to communicate and publicise the various positions and arguments that were raised in a deliberation. The Oregon Citizens Initiative Review (CIR), created to help citizens make informed choices on state wide ballot measures, is a good example of this second function. Citizen panelists meet in a faceto-face mini public setting to hear from both sides of the issue, talk with neutral witnesses, and deliberate intensively as a full panel and in small break-out groups. At the end of the process, the group takes a vote and then writes up a one-page 24 M Schwartzberg, Counting the Many: The Origins and Limits of Supermajority Rule (CUP, 2014); A Moore and K O’Doherty, ‘Deliberative Voting: Clarifying Consent in a Consensus Process’ (2014) 13 Journal of Political Philosophy 302. 25 J Dewey, The Public and Its Problems (Swallow Press, 1954) 107. 26 K Grönlund, A Bächtiger and M Setäla (eds), Deliberative Minipublics – Involving Citizens in the Democratic Process (ECPR Press, 2014). 27 Moore and O’Doherty (n 24).

Proceduralising the People  111 information sheet for voters at large which records the vote and the reasons that were raised on each side of the issue.28 In this case it is important that all sides of the issue are presented to voters and this includes publishing the internal vote of the mini public. There is evidence that the CIR and other similar initiatives have had a positive effect on the quality (better informed voters) and inclusiveness (higher participation levels) of public referendum debates.29 Finally, voting can be used as a closure mechanism for the group to take a decision. Can this picture of the relationship between majority voting and deliberative procedures be scaled up to the level of mass democracy? I think so. IV.  PROCEDURALISM REVISITED: CO-ORIGINALITY

Deliberative democracy endorses the view that the legitimacy of democratic outcomes, especially majoritarian outcomes, is tied to an assessment of the democratic procedures that produced the outcome. Those procedures are understood to involve more than minimal conditions to ensure competitive elections but also procedures that safeguard and enhance deliberative public opinion and will formation. Thus deliberative democracy is always procedural in some sense but is it also always purely procedural? Pure proceduralism is the view that there are no standards to evaluate the legitimacy or correctness of outcomes independent of the procedure itself. A number of deliberative democracy theorists have rejected pure proceduralism in favour of a substantive approach because, as Gutmann and Thompson point out, only by including such principles can we assert, when necessary, that ‘what the majority decides, even after full deliberation, is wrong’.30 Not only do we need substantive moral principles to be able to say when an outcome is wrong, but we also need institutions that can constrain majorities when they do wrong. This of course points to a separation of powers and an independent judiciary with the power of judicial review. Pure proceduralists respond to this criticism by asking who decides what is wrong? Where do unelected judges get the authority to limit popular will? Rights foundationalists offer arguments pointing to the pre-political origins of rights. Deliberationists tend to offer a co-originality argument often inspired by Habermas or Rawls.31 On the co-originality view, rights and democracy are co-dependent. Habermas’ version of this argument goes like this: the only plausible justification of the rights and freedoms enshrined in a Constitution is that they are the outcome of a popular democratic process; popular democratic processes only have the power to justify constitutions if they are undertaken under conditions that 28 J Gastil and K Knobloch, Hope for Democracy: How Citizens can Bring Reason Back into Politics (OUP, 2020). 29 J Suiter and T Reidy T ‘Does Deliberation Help Deliver Informed Electorates: Evidence from Irish Referendum Votes’ (2020) 56 Representation 539; Gastil and Knobloch (n 28). 30 A Gutmann and D Thompson, ‘Deliberative Democracy beyond Process’ (2002) 10 Journal of Political Philosophy 153, 161. 31 Habermas (n 3); C Brettschneider, Democratic Rights: The Substance of Self-Government (Princeton University Press, 2007); S Rummens, ‘Populism as a Threat to Liberal Democracy’ in CR Kaltwasser, P Taggart, P Ochoa Espejo and P Ostiguy (eds), Oxford Handbook of Populism (OUP, 2017); Chambers (n 1).

112  Simone Chambers respect the rights and freedoms of participants, that is, under constitutions.32 For now, I focus only on one half of this thesis: ‘Popular sovereignty is (…) proceduralized in the sense that the popular will is legitimate only in so far as it is the result of a procedure of reasonable deliberation. Since private autonomy is an essential precondition of such deliberation, any outcome that does not respect individual rights has to be rejected’.33 The co-originality view does not merely say that elections without rights (say free speech and freedom of association) are a sham. It shifts the locus of democratic legitimacy away from elections and majority rule. Individual rights are the precondition for democratic procedures. If one thinks of democratic procedures primarily in terms of elections and voting, then the schedule of rights that can be justified this way is relatively narrow. This is a common criticism of instrumentalists like John Hart Ely34 and Alexander Meiklejohn35 who think of rights as necessary conditions for the equality of each citizen as a voter and law maker. Deliberative democrats begin with an ideal of deliberative opinion and will formation in which citizens exchange reasons and justifications in the process of forming their opinions and preferences regarding public issues. There are three dimensions along which this process is assessed: equality, inclusiveness, and epistemic robustness. Equality and inclusiveness begin with voting rights but move beyond the question of who gets the vote to who gets to be heard, addressed, and responded to in public discourse. With regard to the epistemic dimension, here citizens require access to dependable information not just about facts and events but also about the claims, complaints, arguments, justifications, and cri de coeur of their fellow citizens. V.  SELF-GOVERNMENT AND THE PEOPLE

Deliberative proceduralism not only leads away from minimalist electorally focused views of democracy but it also leads away from a Rousseauian inspired search for outcomes that embody the general or the people’s will. Pluralism suggests that dissent, opposition, and difference are permanent features of all democracies and so any claim to speak for the people in a decisive unitary way will misrepresent and exclude something or someone. The fact of deep disagreement and the impossibility of a unified will have led some democratic theorists to retreat from strong claims about popular control or self-government and instead think of democracy only in terms of the equality and fairness of the process.36 Deliberative proceduralism by contrast has not given up on the ideal of popular control and authorship. But the self of self-government is proceduralised. On this proceduralised understanding, ‘the people’ is ‘not a collection of individuals, but a procedure of decision-making, by

32 Habermas (n 3) 94. 33 S Rummens, ‘The Co-originality of Private and Public Autonomy’ (2006) 14 The Journal of Political Philosophy 469. 34 JH Ely, Democracy and Distrust (Harvard University Press, 1980). 35 A Mieklejohn, Free Speech and its Relation to Self-Government (Harper, 1948). 36 Waldron (n 17).

Proceduralising the People  113 which individuals interact with each other mediated by legal institutions that channel popular demands and force representatives to adopt views and makes decisions. In the long term, these procedures can be recognised as “the Popular will” and, thus, we can eventually think of them as popular sovereignty’.37 The proceduralised view of the people leads to a number of conclusions. First, any decision, vote, election, or referendum is never synonymous with the people and is always fallible, corrigible, and partial. Secondly, ‘the people’ is always a work in progress over time. The work involved here is, on the one hand, maintaining adequate levels of the three dimensions of legitimacy: equality, inclusion, and the circulation of and access to good information as well as the undistorted views, claims, and expressed feelings of others, and on the other hand, maintaining channels of responsiveness between citizens and decision-makers. Thirdly, the assessment of whether the democratic system does a fair job in facilitating and empowering popular opinion and will formation must be assessed along multiple dimensions. Voting is essential to this process, but it would be a mistake to think that democratic authorship can be traced to a causal relationship between votes and outcomes. We want to be able to trace a connection between the considered opinions of the public (in all its plurality) to outcomes. Finally, this view places special emphasis on the structure, character, and regulation of the public sphere in determining democratic legitimacy rather than the voting booth. VI.  PUBLIC SPHERE IN A DELIBERATIVE SYSTEM

Let me begin with an idealised outline of how the public sphere might work in a healthy well-functioning democracy, always keeping in mind that this is a yard stick against which we measure real democracies. I use the term public sphere to refer to a sphere of political communication that stands between civil society and the state. Following Habermas, I understand this sphere to be ‘wild’, unstructured, and contain multiple forms of political communication.38 Although individuals, groups, and institutional contributions to the wild and open communication of the public sphere may be deliberative or flow from a deliberative venue (eg, the Oregon Citizen Initiative Review I mentioned above), taken as a whole what goes on in the public sphere cannot be characterised as deliberation in any straightforward sense. Communication is highly mediated and disaggregated and ranges along a vast multi-dimensional continuum from everyday talk, to formal deliberation and includes a growing number and variety of digital platforms. Although public problems and policy solutions are an ongoing topic of conversation throughout the public sphere, the communication is not directly tied to a decision moment in the way a face-to-face deliberation in a structured mini public or public

37 P Ochoa Espejo, ‘Populism and the Idea of the People’ in Kaltwasser, Taggart, Ochoa Espejo and Ostiguy (eds) (n 31) 615. 38 J Habermas, ‘Political Communication in Media Society: Does Democracy still have an Epistemic Dimension? The Impact of Normative Theory on Empirical Research’ in J Habermas, Europe: The Faltering Project (Polity Press, 2009) 155.

114  Simone Chambers forum might be. Nevertheless, the communication is decision-oriented in the more general sense of being taken up by questions of the type ‘what should we do?’. That modern liberal democratic public spheres always have this decision-oriented potential as regards communication is made evident at times of crisis and mobilisation. The murder of George Floyd at the hands of the police in May 2020, for example, and the ensuing protest movement focused the attention of millions of Americans on the question of racism and police violence. Although a systemic problem long before Floyd’s brutal death, this tragedy put racism and police violence on the public deliberative agenda in the sense that ‘what is to be done?’ came dramatically into focus as a topic of conversation and contestation. But the public ‘conversation’ about what is to be done does not look like the facilitated conversations in designed settings nor does the public sphere take decisions. Another difference between mini public deliberation and the communicative dynamics of the public sphere, is that the latter is asymmetrical in the sense that most citizens are consumers of messages rather than producers of messages. The mediators of this asymmetry, the press, social media, and other structures of communication, play an outsized role in the public sphere. We should pay as much attention to these institutions and their regulation as we do to protecting the right to vote. Although the public sphere cannot be understood as a deliberation writ large, it can be understood as performing important functions in a deliberative system. While the public sphere does not perform a decision-making function, it performs a function of articulating and raising the problems, claims, interests, (not to mention hopes, dreams, and fears) upon and about which decisions are taken. The public sphere produces public opinion. Public opinion articulates the problems for which a democratic system seeks solutions. Ideally, public opinion sets the broad agenda in the deliberative system. Public opinion, although reflecting the real-life concerns, interests, and problems of the public, is constituted through communication. Thus, public opinion is not an exogenous force in a democratic system but very much an endogenous force. Public opinion in the sense that I am using this term is not synonymous with surveyed attitudes about public issues. It refers instead to opinion that is produced and created via intersubjective and public processes of communication. Public and scientific publishing and discussion of survey data are part of the process through which the public sphere produces public opinion. That opinion is ‘considered public opinion’ to the extent that those processes trade in facts and are conducive to authentic exchanges and reflection. Not all ideas, claims, positions, and demands raised in the public sphere can be justifiably translated into a legislative agenda and in any case all of them need clarification, articulation, and translation in order to make it onto an agenda. So the system must ‘filter’, to use Habermas’ word, the claims and demands by putting them through a feedback loop of public scrutiny and then an ever more rigorous processes of justification.39 As the political talk moves closer to the centre, traditional rules of deliberation and arguing become more rigorous and the conversation looks more



39 ibid.

Proceduralising the People  115 and more (or ideally) like a deliberation. The system as a whole is characterised by a significant epistemic division of labour.40 The more epistemically rigorous function of arguing and deliberating over clear policy options takes place higher up the system ladder. But the content of deliberation, that is, what gets deliberated, comes out of a communicative process that filters, clarifies, and prioritises claims and narratives in the public sphere. Democracies function properly when they respond to and act on problems, concerns and issues that confront real people in civil society. The picture of selfgovernment to emerge from this view gives central place ‘to the idea that the process of political opinion and will-formation in which citizens (actively and/or passively) participate should effectively influence and shape the laws and policies to which they are subject’.41 Responsiveness and control are instantiated in the feedback loop between opinion and will formation in the public sphere and decision-making at the centre. Elections are one mechanism in this loop but not the only mechanism. The relationship between public opinion and responsive law-making is not a causal one where voters’ actions determine policy outcomes. The relationship is re-envisioned in discursive or communicative terms as a relationship of deliberative accountability where representatives must justify their actions in terms that speak to all citizens as equal consociates. Elections and majority rule perform three functions in the system analogous to the three functions of voting in a mini public we reviewed earlier. First, if we think of deliberatively structured opinion and will formation as an ongoing, open-ended process through which a political community publicly and collectively hashes out issues and problem solves then regular voting and elections are important moments to take stock and reflect on the direction of the conversation. Elections punctuate the ongoing underlying democratic discourse of a community. In this way, they can contribute to deliberative accountability by structuring and demanding regular justifications of platforms and policy proposals. The competitive adversarial structure of elections need not diminish the deliberative potential of these moments. We will disagree about what is the best course of action. It is important that the public gets to see and think about these disagreements (often presented in party platforms). Opposition and dissent are the catalysts of productive public debate just as they are a necessary component of legislative debate. It is not partisanship and competition per se that undermines the deliberative potential of the public sphere, it is toxic polarisation that turns disagreement into hate and exclusion. The possibility that elections can positively contribute to the circulation of reasons is severely hampered, perhaps destroyed, without strong and sensible regulation of the public sphere, especially the role of money in politics. Elections install the winners in power, but they also record that there were losers and that they too won votes. A second function, the one that Bernard Manin stresses in his theory of deliberative democracy, is how majority rule makes the minority 40 S Chambers, ‘Balancing Epistemic Quality and Equal Participation in a Systems Approach to Deliberative Democracy’ (2017) 31 Social Epistemology 266. 41 C Lafont, Democracy Without Shortcuts: A Participatory Conception of Deliberative Democracy (OUP, 2019) 24.

116  Simone Chambers visible in a way that consensus, unanimity, or super majority rules do not.42 Whereas on an electoral focused view of democracy the important point is that next time around the minority might win the day, in a deliberative model the visibility of the minority means that those in power need to justify their actions to the minority as well. Majorities elect governments but governments govern everybody and therefore their reasons and justifications must address everybody. Finally, voting introduces a necessary decisiveness to the process of public debate. It is a closure procedure that reflects the equal status of each citizen. In this sense it is the appropriate closure procedure for democracy. I have argued that voting without deliberation is difficult to defend. But deliberation without voting is also problematic. In a small meeting, an individual might be able to get the sense of the room after lengthy deliberation and act on that sense without a vote. And political representatives do something similar when they attend to public opinion and shape public policy accordingly. But deliberative legitimacy could not be maintained in a regime in which elites were simply attuned to the interests, concerns, and claims of citizen articulated in a public sphere and always acted on those but never had elections. This would itself undermine the very values of equality and inclusion instantiated in deliberation. Melissa Schwartzberg’s defence of majority rule fits very well with the deliberative democratic view: ‘if respect for the individual and independent judgment are central commitments of democracy, and if equal respect for citizens entails the presumption that citizens’ judgments – again, including their judgments of their own interests – are of equal merit, then the default voting rule within democracies should be majority rule’.43 Universal franchise is an important acknowledgement of the equal status of each individual as well as a respect for the agency of each citizen. The equality of one person one vote is an important foundation of basic political respect from which to build the more robust political equality envisioned in a deliberative system. I have argued that the first and most important structural feature of a democratic system seen through a deliberative lens is an open and inclusive public sphere with well-functioning press and political communication. Few contemporary public spheres get high grades on any of these dimensions. All have various pathologies of exclusion, epistemic opacity and failures, and market distortions (to name just a few of the problems we face). This means that deliberative democracy theory is often a critical theory focusing on the ways that empirical and real world public spheres fail to perform their democratic function. In this critical theory, certain populist regimes have come under special scrutiny. Populists target the public sphere and the free circulation of information directly. It’s not just that they do little to support public debate (a chronic problem in stable liberal democracies) it is that they actively push back against public debate and often identify the forces of the public sphere as the enemies of democracy. Here is the sharpest contrast. For deliberative democrats, opposition, criticism, dissent, counter arguments, plural points of view, challenge, are the elements and building blocks of a proceduralised popular sovereignty, for populists these are obstacles, maliciously placed in the path of the will of the people.

42 Manin

(n 23); Schwartzberg (n 24). (n 24) 7.

43 Schwartzberg

Proceduralising the People  117 VII. REFERENDUMS

As an illustration of the way this sort of proceduralism can furnish a framework of critical analysis, I want to take a brief look at two recent constitutional referendums. Putting constitutional questions to popular votes appears to place the rule of law at the mercy of majorities. But citizen participation in constitutional-making reform can potentially strengthen the legitimacy of the Constitution. This claim is both empirical and normative. On the empirical side there is evidence that citizen participation, especially deliberative participation at the drafting stage of constitution-making, produces citizen ‘buy in’ and leads to more robust democratic institutions.44 On the normative side, citizen participation can contribute to the claim that the Constitution is the expression of ‘we the people’ and underpinned by the justificatory force of popular sovereignty.45 This is the other side of the co-originality thesis that I have not been able to defend in full but is captured in Habermas’ famous claim ‘the rule of law cannot be had or maintained without radical democracy’.46 According to the view I have outlined in this chapter, the democratic legitimacy of popular decision procedures, such as referendums, should be assessed on the processes of opinion and will formation and the creation of feedback loops within an active and inclusive public sphere. This assessment of legitimacy is on a continuum. Thus, I argue that the 2015 Irish referendum has more democratic legitimacy than the Turkish referendum of 2017, not because of a higher majority threshold, but because of the deliberative scaffolding that was put in place to encourage a broad national conservation. I do not say that the Turkish referendum was illegitimate. Although there does appear to have been some voting irregularities, it is not clear that they were such as to undermine all claims to a democratic process.47 What I suggest is that a preliminary assessment of the processes and procedures leading up to the referendum does not give us confidence (or at least, not as much confidence as we have in the Irish case) that the public sphere functioned as a credentialising force backing up the vote. In 2012 the Irish Convention on the Constitution was established to review the existing Constitution and advise on reform.48 The Convention had 100 members: one chair, 66 randomly selected ordinary citizens, and 33 places reserved for legislators allocated proportionate to each party’s seats in Parliament. After much deliberation, consultation with civil society, and input from citizens at large, the Convention submitted 40 recommendations to the Government for consideration, several of which would require a constitutional referendum to enact. Three have subsequently

44 TA Eisenstadt, C LeVan and T Maboudi, ‘When Talk Trumps Text: The Democratizing Effects of Deliberation during Constitutional-Making, 1974–2011’ (2015) 109 American Political Science Review 592. 45 X Contiades and A Fotiadou, Participatory Constitutional Change: The People as Amenders of the Constitution (Routledge, 2018); B Ackerman, We the People: Foundations, Vol 1 (Harvard University Press, 1991). 46 Habermas (n 3) xlii. 47 N Levin, M Coker and Y Candemir, ‘Inside Turkey’s Irregular Referendum’ The Wall Street Journal (25 April 2017) www.wsj.com. 48 J Suiter, D Farrell and C Harris, ‘The Irish Constitutional Convention: A Case of “High Legitimacy”?’ in M Reuchamps and J Suiter (eds), Constitutional Deliberative Democracy in Europe (ECPR Press, 2016).

118  Simone Chambers gone to a referendum, the most significant of which was the marriage equality referendum of 2015.49 A number of scholars, as well as public intellectuals, have dubbed this process a success along with the 2018 referendum on abortion that followed a second citizens’ assembly in 2016.50 Success was measured on an evaluation of the quality of debate, inclusiveness and civility of public appeals, levels of participation especially from civil society organisations, and the post-reform satisfaction with the process including those in the minority. The 2012–2015 constitutional process is a good illustration of how to think about proceduralised popular sovereignty in concrete terms. The process was drawn out over three years and appears to have been designed to initiate a productive public dialogue or national conversation that would not be dragged down by partisan and sectarian entrenchment and resentment. Popular opinion and will formation took place through the triangulation of three institutions mediated by an open, free, and critical public sphere: a democratically elected Parliament, a special Convention on the Constitution with a significant citizen component, and a popular referendum process. None of these institutions alone represent the definitive exercise of popular sovereignty; the people exercising democratic self-determination can be seen in a retrospective assessment of the deliberative quality, inclusiveness, and fairness of the process as whole. The mediating role of the public sphere is all important as it allowed for a national conversation over time that gave the final vote its democratic credentials. In October 2017, Turkey went to the polls to vote on 18 amendments to the constitution. These amendments were formulated by the ruling AKP party. The thrust of the 18 amendments was to move Turkey to a presidential system and limit Parliamentary and judiciary oversight on the president. In defending the constitutional reform, a government spokesman suggested that checks on executive power are anti-democratic: ‘any attempt to form an institutional control over the people’s will is against democracy … the president, is elected directly by the people …. So, it would not be acceptable for the Parliament to file an interpellation motion about the actions and decisions of someone who takes his authority directly from the people’.51 An interpolation motion is the formal request made by Parliament to the Government asking for explanation and justification of an action or policy. It is used as a device of publicity and accountability but is now apparently seen as an obstacle to democratic will. Both the introduction of direct election as well as the expansion of presidential powers vis-à-vis Parliament was framed as enhancing citizen participation, power and sovereignty. Citizens changed the Constitution though a referendum, citizens directly elect the president, the president has fewer obstacles (checks and balances) to enacting the will of the people. On the day after the referendum, Erdoğan announced that ‘this nation has realized the most democratic election, the likes of which has not

49 The other question on the 2015 ballot was to reduce the age of candidacy for the president from 35 to 21 and then on 26 October 2018 to repeal the law against blasphemy. 50 J Suiter, D Farrell and C Harris, ‘“Systematizing” Constitutional Deliberation: the 2016–18 citizens’ assembly in Ireland’ (2018) 34(1) Irish Political Studies 1; Suiter, Farrell and Harris (n 48). 51 Quoted in B Bora, ‘Turkey’s constitutional reform: all you need to know’ Al-Jazeera (17 January 2017) 5–6.

Proceduralising the People  119 been seen in any western country’.52 But the referendum process was not designed for maximum (let alone quality) citizen participation, but for producing an electoral mandate for an elite agenda. Not only was there no attempt to organise and initiate a national conversation about the constitutional reforms, but public debate was dominated by the Government, with active suppression of the ‘No’ campaign.53 In Turkey, the 2017 referendum was intended to furnish a democratic mandate for Erdoğan’s agenda. Without an inclusive participatory consultation process, however, the democratic credentials of that mandate are suspect. VIII. CONCLUSION

In this chapter, I have outlined a deliberative democracy version of the principle ‘there is no popular will without the rule of law’. This view begins with a procedural premise that the constitutional order does not constrain popular will, such an order constitutes that will. A central feature of this view is that the popular will is not synonymous with the will of the majority. Proceduralism that sees democracy instantiated in the legal structure of majority voting either has to give up on any claim that democracy is about self-government or popular control and be satisfied with the claim that democracy is a fair way to make decisions, or it must admit that democracy is about the rule of the majority and hope that the composition of that majority changes over time. Hans Kelsen, whose views have inspired a number of contemporary procedural theories, is a good example of the second limitation.54 Like deliberativists, Kelsen rejects a concrete understanding of the people and instead argues that ‘the “People” is not, as is often naively imagined, a body or conglomeration as it were, of actual persons. Rather, it is merely a system of individual human acts regulated by the legal order’.55 Constitutions make democracy possible because they lay out the rules and procedures through which a diverse group, characterised by deep disagreement, can govern itself without oppressing each other. But when Kelsen speaks about which rules and procedures more specifically allow for democratic collective action coordination, the proceduralised popular will turns into the majority will. ‘Democracy must be parliamentary democracy, in which the ruling will of society is created by a majority of those who are elected by the majority of persons possessing political rights. As a result, political rights – and therefore freedom – are essentially reduced to the right to vote.’56 Democracy produces a series of ruling wills that represent a set of interests and concerns, bundled and articulated in a party platform, and then supported by a majority. Nadia Urbinati explains that

52 Quoted in Levin et al (n 47) 9. 53 The ‘No’ campaign faced serious restrictions with arrests of several public figures. By some accounts, the ‘Yes’ campaign had 90% of the airtime during the campaign. On all press freedom indices, Turkey has been sinking. Reporters Without Borders ranked Turkey 157 out of 171 on press freedom for 2018, www. rsf.org. 54 C Invernizzi Accetti and G Oskian, ‘What is a Consultative Referendum? The Democratic Legitimacy of Popular Consultations’ (2020) Perspectives on Politics 1; Saffon and Urbinati (n 17). 55 H Kelsen, The Essence and Value of Democracy (Rowman & Littlefield Publishers, 2013) 36. 56 ibid 41.

120  Simone Chambers majority rule for Kelsen is defined ‘within an overall temporal framework of continuity, involving the possibility of revising previously approved decisions, as well as formulating new ones’.57 ‘Revision’ here suggests that regular elections over time will most likely mean, given pluralism and competition, that the ruling majority will be made up of different sets of interests. But this still equates the ruling will with the majority will. I have tried to articulate a view that sees Constitutions as giving legal structure to a certain type of political communication rather than simply voting. This in turn means that we look at the discursive and communicative ways majorities are constructed as well as discursive and communicative ways that majorities rule. Thus, the over time analysis is not just about avoiding a permanent majority, it is also about channelling demands and creating discursive feedback loops of accountability. On this view then the minority is not left simply with the hope that they might win next time around. Minorities are made up of citizen who have the same political rights as majorities and so they deserve explanations and justification just as much as majorities. Majority outcomes can claim be a popular will to the extent that they are the product of legally instituted and political entrenched processes of equal, inclusive, and epistemically robust opinion and will formation.



57 N

Urbinati, ‘Introduction’ in ibid 10.

8 Elite vs People YVES MÉNY*

T

he relationship between elite and people is not a new issue and one could argue that it is as old as the first manifestation of the ‘political’ in any civilisation. The tension between the whole, the domain of many and the part, the domain of the few, appears as soon as some individuals are excluded from the deliberations preceding decisions and when others pretend to be the only ones capable of reasoning, deciding and implementing through force or persuasion. Because, as Westerners, we tend to consider only the familiar cases of western Europe or, even worse, the single case of Athens since it is the best documented and recognised as the blueprint of our political systems, we tend to forget that democracy is not a matter only for the West, as Amythia Sen has rightly underlined. As far as we know, thanks to the increasing number of anthropological studies, most traditional cultures have combined the use of force controlled by a few (warriors, lords, king, chiefs etc …) with the necessity to build up consensus, for instance through councils or assemblies most of the time restricted to a tiny part of the population. With a few exceptions, women and children were excluded as well as the lowest social strata (from Indian untouchables to Sparta’s helots). The councils, in particular in primitive groupings, were reserved to the wise men, in other words, the oldest of the village or of the city. A practice which is still alive even in the most advanced or sophisticated societies as testified by the practice of ‘wise men committees’ or the tradition of appointing senior persons to higher bodies such as courts, appeal bodies or independent authorities. The cover up of modernity might hide very ancestral behaviour! Pure egalitarian societies are rare and they are more illusions than hard facts, as confirmed by observation. The present rise of populism across the world and the challenge to representative democracy is a good illustration of the utopian dream of a world without mediation or delegation, a world free of hierarchies and aristocracy whatever might be its content, meaning and actual power. It is telling that in the search for an alternative to representative democracy as we know it today, the Athenian model is often cited and taken as an example of the way to pursue in order to put in place an alternative and better model: one invokes direct democracy, referenda and popular initiatives, the deliberation and decision-making processes open * Emeritus President, European University Institute.

122  Yves Mény to all citizens, the rejection of biased and manipulated elections and its replacement by techniques such as drawing lots. It also invokes the necessity to put under control and surveillance those in charge of executing citizens’ will; or the need to shorten political terms in order to avoid clientelism, corruption, conflict of interests and the likes. These reflections and proposals for change are in line with the powerful motto launched in 1863 by Jefferson in his Gettysburg address: ‘the government of the people, by the people, for the people’. The fact that power is the prerogative of one single individual (supported in any way by a religious, military or social elite) or a restricted group of persons has, for most of mankind’s history, been considered as normality rather than an anomaly. It is only in Greek cities and in particular in Athens, around the fourth and fifth century BC, that the idea that the power to govern emanates from the ‘demos’, from the people, brought a revolution in the traditional perspective. Its powerful and irresistible effects remained dormant for centuries, in practice for nearly 2,000 years. Even in Athens, this radical novelty would be challenged by the aristocracy/oligarchy of the time. Elitism takes its full meaning when its counterpart appears, ‘the people’. A concrete social reality (the masses, the crowds, the populace) became an abstract philosophical, ideological, legal entity and scrapped the old conceptions of legitimacy. This transformation would require several revolutions and many forms of political resistance before taking place, in America and then in Europe, before expanding to the entire world. From the American and the French Revolutions at the end of the eighteenth century, the ‘people’ occupied the centre of the stage and will never abandon it. Tocqueville analyses this transformation in his Démocratie en Amérique as a ‘providential’ phenomenon, in other words a phenomenon whose unfolding is determined by the natural evolution of societies. Nobody or nothing can stop this deterministic and fatal evolution. Tocqueville is an aristocrat, he deplores the decline of aristocracies but he underlines that this ‘tsunami’ is unstoppable. And he regrets that the energies spent in vain to stop it are not better used in trying to accommodate societies and institutions to this unavoidable transformation prompted by the march towards equality: Le développement graduel de l’égalité des conditions est donc un fait providentiel, il en les principaux caractères: il est universel, il est durable, il échappe chaque jour à la puissance humaine; tous les évènements, comme tous les hommes, servent à son développement.1

Tocqueville is so convinced of this ineluctable process (and by way of consequence of the expansion of democracy) that, in his view, everything contributes to its fulfilment: the efforts to favour it as well as the attempts to combat it. The direction of history might be slowed down, stopped for a while, or circumvented here or there but there is no alternative to this millennial trend. Tocqueville does not believe in the end of history but is firmly convinced that the direction is without any doubt heading towards more equality and democracy. Stuart Mill shares the same analysis, underlying that democracy’s progress cannot and should not be stopped. Today, Tocqueville’s prophecy seems rather fragile and questionable: democracy is highly contested in places where it is most solidly grounded and libraries are full of books

1 A

de Tocqueville, De la démocratie en Amérique (Saunders and Otley, 1835) 37.

Elite vs People  123 and analyses underlying the growing gap between rich and poor. However there is a difference between Tocqueville’s views and present assessments. Most of the rather pessimistic forecasts about the state of democracy and the increasing differences in income are based on short or mid-term observations while Tocqueville’s perspective is a very ‘longue durée’ vision from the first millennium to his time. One can, however, dispute his assertion that the unavoidable rise of equality and democracy entails the disappearance of aristocracies. Tocqueville’s position is actually more subtle than that. He is very conscious that every aristocracy on the decline is replaced by other forms which replace the previous hierarchies. He emphasises the fact that at every step of this long march towards equality, the differences between the aristocracy and the low classes tend to diminish: ‘Le noble aura baissé dans l’échelle sociale, le roturier s’y sera élévé; l’un descend, l’autre monte; Chaque demi-siècle les rapproche, et bientôt ils vont se toucher’.2 Indeed, it would be an illusion to believe that the emergence and the domination of the ‘people’ is such that it offsets the necessity for an ‘aristocracy’ or elite, whatever its name, composition and role. The lesson comes from afar: the much celebrated democratic regime in Athens is full of internal contradictions and first of all the fact that the so-called ‘demos’ (the people) was a tiny percentage of the population. Distinguished thinkers such as Moses I Finley or mythologists such as Pierre Vidal-Naquet have underlined forcefully the Athenian paradox: the beautiful deliberative democracy invented in the Greek cities was made possible only thanks to the imposition of slavery. A few thousand male citizens had the luxury to discuss and decide together while most of the ‘others’ (women, slaves and foreigners) were providing the manpower for the private and public economy. Democracy in the South of the US at the time of Tocqueville’s observations was structurally the same. This in-built tension between the elite and the people raises several issues: how to bring out these elites and under which conditions of legitimacy ? How much competition and turnover is needed in order to justify their power? How can democracy make use of this elitist ‘fatality’ and make the people and elites closer to each other to the point of ‘se toucher’ as Tocqueville put it? What is the impact of populist movements on the summa divisio elite/people? I.  THE RISE AND FALL OF ELITES: CLOSURE, CIRCULATION, INTERLOCKING

In the western world, the analysis and reflection on the elites is as old as the Greek myths. Both the Iliad and the Odyssey tell stories about the division between those who govern (the Gods and the kings, who Homer calls the ‘shepherds of men’) and those who are governed, that the poet calls the ‘crowd’, the ‘mass’. The poems also evoke those who have a special place next to the governors of the world: the warriors, the old wise men, the priests. The others are barely mentioned. Later, Plato and Aristotle introduced the first concepts related to the power origin and its organisation, inaugurating a system of classification and evaluation which is still the basis



2 ibid

36.

124  Yves Mény of our philosophical, sociological and political thinking: democracy, oligarchy, monarchy, tyranny. Much later, Montesquieu resumed a current of thought and a way of thinking which was inspirational, in particular to the American Founding Fathers. Following the American and French Revolutions, the debate has raged about the respective merits of these various regimes. Democracy was highly contested by monarchical, imperial and authoritarian regimes. From that moment, the debate about the respective role of the people and of the elites has never stopped. However, the terms of the discussion have considerably evolved over time. The first big change was related to the legitimacy question: who is the legitimate source of power? God? The people? Then comes immediately the question of definition of ‘the people’ and the issue of its representation since ‘the people’ cannot anymore be present physically in a place where it could deliberate and decide. The feasibility issue is resolved by two tricks: a narrow definition of what constitutes the people (as in Greece, exclusion of women, foreigners and the poor); and a variety of electoral mechanisms allowing the choice of a limited number of representatives. In his recent book Il popolo e i suoi rappresentanti, Sabino Cassese3 reminds us that two famous ‘representatives’, Tocqueville in France and De Sanctis in Italy, were elected in the first half of the nineteenth century with an extremely small number of votes (from 258 to 658, according to the election). In the UK, the ‘rotten boroughs’ were even worse and the scandal lasted until the 1832 Reform Act which increased the number of voters by one third (from 400,000 to 650,000). These numbers grew by successive waves under the pressure of the (male) masses or of women, but in many countries, the ‘universal suffrage’ has been granted only after the first post-war period for a few countries and post-1945 for the others. Initially, most of the thinkers in Europe and in America, when favourable to this new form of legitimacy, insist that their objective is to build up a ‘representative system’ and a republic, not a ‘democracy’ in the full sense of the word, that is a system in which power is in the hands of the people. It is a position defended by the moderates in France, while the revolutionaries à la Robespierre or Danton invoke the people ‘en masse et en armes’ to legitimate a bloody dictatorship. In the UK, the representative principle is instrumental in allowing the survival of the monarchy while the effective power is controlled by parliamentary elites. In the US, the founding fathers play on two levels: on one hand, the power is attributed to the people (‘We the People …’) but simultaneously reduced by every possible means. Its capacity to act and decide is drastically limited. Power is in the hands of representatives, but even they are confined and limited by a sophisticated system of checks and balances. One of the few who identify the unavoidable evolution from representation to democracy is Roederer in France who emphasises that elective aristocracy and representative democracy are the same.4 While initially the irruption of the people on the stage is restricted by the right to vote or not, during the second half of the century the idea prevailed that the representatives have to be chosen for their capacity. Only those who have knowledge and experience are entitled to govern. Stuart Mill’s arguments 3 S Cassese, Il popolo e i suoi rappresentanti (Edizioni di Storia e Letteratura, 2019) 16. 4 See P Rosanvallon, Le peuple introuvable, Histoire de la représentation politique en France (Gallimard, 1998).

Elite vs People  125 in favour of the ‘enlightened’ find an echo on the continent, for instance in France or in Italy. Boutmy and Alfieri create in their respective countries a School capable of preparing the future ‘aristocracy of merit’ due to replace the old aristocracies constituted by heritage. In the UK, the same model will give birth to the London School of Economics and Politics. Not only is the ‘elite’ not denied legitimacy, but it is perceived as a necessity. It is at the same time interpreted, in a Tocqueville mode, as an unavoidable direction of history: old elites are thrown out and replaced by new elites more in tune with the evolution and needs of their time. This vision of governing elites recruited on the basis of their competences and capacities differs from the old elites by the origin of their legitimacy: education, merit, expertise are the new sources of power while war, religion and wealth become irrelevant (at least in theory) to justify the access to and control of power positions. Next to the elected elites will grow a technocratic one. However, these new elites will often be perceived, as a group, antagonistic to the interests of the people. New ideological movements will emerge, as diverse as the reformists embodied by the populist movements in the US at the end of the nineteenth century, or the socialist/marxist revolutionaries which consider them as a caste, as the enemies of the proletariat and servants of capitalism. From the end of the nineteenth century, the contestation of the elite’s power and the advocacy in favour of alternatives modes of government, be they populists or ‘popular’, triggered new visions of their formation and role. Three crucial contributions by Mosca, Pareto and Michels5 bring a more realistic and ‘sociological’ approach to the issue. The question is not analysed only or mainly from a philosophical or theoretical point of view. A sociological or empirical approach is preferred. The three authors converge in recognising that everywhere, and at any time of history, the government of political systems has been in the hands of a limited part of the population, whatever name it takes. Pareto underlines that pure ‘democracy’ is mere wishful thinking and that elitism exists in any group, profession or organisation. It is a fact of life which cannot be denied. There is a ‘superior’ class and an inferior one. Mosca echoes more explicitly this assessment by stating that ‘In any society – those which are underdeveloped and have barely reached the dawn of civilization as well those among the most advanced and powerful – there are two classes of people, a class which leads and another one which is led. The first class, always the less numerous, fulfills all the political functions, monopolises power and enjoys its benefits while the second, the most numerous, is led and subordinated to the first in a more or less legal, arbitrary or violent way’. Michels is even more provocative, emphasising that elitism is a universal phenomenon. Even those who criticise and denounce it are the first victims of an organisational and collective necessity. By showing that oligarchy is present even in the social democratic parties organisation, Michels insists that there is no exception to this iron rule in any institution, even those wishing or pretending to be fully democratic. These analyses are not void of normative values and preferences, but their contribution is crucial in transforming a pure ideological issue into a more scientific analysis. The purpose is not mainly to get rid of the ruling elite in the hope

5 On this issue, see Y Mény, Popolo ma non troppo, Il malinteso democratico (Il Mulino, 2019) Ch 1 (forthcoming English translation, ECPR series, 2021).

126  Yves Mény that a bright future will arise, but rather to identify the rules or practices which could encourage the turnover of elites or their control for instance. To be truthful, in addition to being realistic, these three theories define the ruling elites in a rather pessimistic way: Mosca, for instance insists upon the social features which might facilitate the constitution of elites beyond the personal qualities of the individuals: the inherited privileges of the superior class (education, networks, wealth, savoir-faire) are transmitted from one generation to the next. Over time the power of a given elite tends to consolidate and increase. It can even survive dramatic changes or revolutions, as shown by many sociological studies conducted after World War II. For instance, in spite of the fall of monarchies, the old aristocracies have kept a dominant position or at least a position much stronger that its percentage of the population in key sectors such as diplomacy or military forces. Even the communist regimes have shown that Marxism in practice does not impede the transmission of power within a narrow clique or even within the same family as in North Korea. Such observations as well as innumerable studies bringing light to the capacity to survive and thrive have contributed to weaken or demolish the benevolent myth of elites at the service of the governed. Once in power, elites, whatever is their origin, fight to keep control of power thanks in particular to the solidarity between the members of this aristocracy, ‘establishment’, ‘caste’ or ‘upper class’. The nature and composition of the elitist system varies considerably from one country to another. In some, family bonds are crucial, in particular in countries where this basic structure of sociability and solidarity is strong: in Mediterranean countries for instance or cultures influenced by religion such as Catholicism. But the preference for family is not confined within these cultural groupings. The WASP families in the US have been able to control the Presidency over time, with a few exceptions. In systems characterised by a split between ethnic/regional/religious groups, the ones which manage to get access to power might not resist the temptation ‘to take it all’. Minorities subdued by the domination of the majority take their revenge by controlling some segments of power and control key positions in society. In a French society dominated by Catholics, Jews and Protestants were able to conquer eminent positions in the banking and financial sector as it is the case in Asia for the Chinese community, for the Indians in Eastern Africa or the Lebanese in Western Africa. Solidarity, secrecy and strategies of survival are crucial components of this fight for power and influence, often associated with wealth and key positions. The Francophone were the dominant elite for more than one century in Belgium while in the Netherlands, the co-existence of different – and often conflictual – social and religious groups was guaranteed by political agreements securing a fair distribution of power and minimising political conflicts. Two successive issues come up once one of these limited groups has taken over: the first one is the monolithic or pluralistic character of these influential elites. The elite in a given system may be both fragmented and pluralistic and as such does not jeopardise, for instance, the democratic character of society or regime. The massive inquiry by Robert Dahl in the city of Newhaven concludes that, indeed, the city was run by a local elite but that there was not a single dominant group controlling the various centres of power and influence. Autonomous and diversified elites were fighting each other or managed segments of local power without being able to control the whole apparatus and economic/social/ideological fabric of the city. The situation

Elite vs People  127 is different when local or national elites have conquered such a monopolistic grip on the economy and politics of a territory that its permanence looks like eternity! There are a few communes in France, for instance, where the main owner of the land, an aristocratic family, has been at the helm of the small community since the Revolution without any interruption. It is a rather marginal case, but more powerful examples can be observed in North Korea, in Latin America, in India (the Gandhi family), in Pakistan (the Butho family) etc. Such is the consolidation of these narrow elites that assassination becomes the privileged instrument to put an end to their domination. Fortunately, it is less the case in modern democracies where elites are not drawn from a few families. The elitist phenomenon, however, persists within narrow groups once they have succeeded in transforming positions acquired on the basis of merit into unassailable strongholds. For this to happen, elites need two instruments: control of access and time. One can observe this strategy at work in particular in the areas which require expertise, education and a certain number of informal, non-written attributes such as language, accent, clothing or membership of ‘old-boy networks’. These powerful groupings being in a position of power have a huge capacity to resist change and challenges as demonstrated by the persistence of public schools and Oxbridge networks in the UK, ‘énarchie’ in France or Spanish techno-structure. Since the post-war period, they have consolidated their capacity to remain at the top of power structures in spite of the many criticisms about their closure, their interlocking character and their biased policy choices. Thanks to their capacity to organise themselves (through formal associations or membership in clubs which matter or informal linkages), to lobby the politicians, to navigate between private and public sectors and to develop conscious strategies of group combined with individualistic interests, they manage to overcome the recurrent phases of criticism and challenges to their privileged positions. They even have a crucial advantage over the political representatives: they do not need to face elections and run the risk of being defeated. In the famous novel by Lampedusa (The Guepard), the prince Salina explains that ‘Everything must change in order to remain the same’. The capacity of elites to adapt, to adjust and to control access is the condition of their survival. For the political elites which cannot escape periodical elections, the stakes are higher. Over time, ad hoc strategies to secure their positions have been developed: for instance, the insurance to get a safe constituency where the chances of being defeated are closed to zero thanks to the sociological composition of the electorate or to the sophistication of gerrymandering practices (a national sport in the US!); the manipulation of electoral systems in order to get the preferred results has become an art in Italy (fortunately, there are often some unexpected results since the voters enjoy fooling those who tried to trap them!); in France the ‘cumul des mandats’ up to its recent drastic limitations was playing the same office. The tacit agreement between parties to preserve their power has grown over time. The collapse of membership has been compensated by the support provided by public institutions and the financial resources collected through dubious means replaced by public funding which insures a privileged access to those already in place. Katz and Mair emphasised this ‘cartelisation’6 6 RS Katz and P Mair, ‘Changing Models of Party Organisation and Party Democracy: The Emergence of the Cartel Party in Party Politics’ (1995) 1 Party Politics 5–28.

128  Yves Mény process of the dominant political parties aiming at protecting their oligopoly, overcoming their political differences and keeping the outsiders at a distance. The British and American cases are the most striking examples of collaboration between the two main parties in order to maintain their duopoly, but complicity between dominant parties is observable nearly everywhere. Oligarchy is an iron law of organisations as Mosca and Michels have emphasised. But there is also another iron law applicable to oligarchies/aristocracies/elites: their survival is conditioned by their capacity to open up their narrow group to new generations, social strata and newcomers. Elites which closed themselves into selfservice organisations are condemned to die and disappear. The process is usually slow (brutal in the case of revolution or war) but the end-destination is beyond any doubt. The slow decay of the Venice ruling elites did not survive Bonaparte’s blow; the French aristocracy in 1789 was powerless in the face of the popular tide. And the old Russian or Chinese elites were swept away by their respective Revolutions. Sometimes the old elite manages to survive at the price of U-turns or radical changes when the country offers few alternatives to the ruling elites. It is often the case of bureaucracies since it is impossible to fully eradicate the administrative elites of the past regime (as it happened after World War II in France or in Italy) while political purge was more extreme (but not complete) in Germany after the collapse of the Nazi regime in 1945 and of the communist East-German regime in 1989. If elitism is not a mere social or political choice but a hard fact that historians as well as political scientists or sociologists have observed, that law has organised and consolidated, that ideology has legitimised and strengthened, one might wonder what space remains to the people which has become the unique source of political legitimacy, not only in democracies but in authoritarian regimes as well (the exceptions are few, since even dictators pretend to govern in the name of the people). II.  RECONCILING SOVEREIGNTY OF THE PEOPLE AND GOVERNMENT OF THE ELITE: A MATTER OF CONVENTIONS

At first sight, invoking the people as a supreme source of legitimacy while being confronted with the inevitability of governing elites is a quasi-insurmountable paradox. Many thinkers have tried to face this dilemma and offer interpretations and solutions. The first group is a rather eclectic one but concurs with the fact that there is no middle of the road solution. Some, like Rousseau, affirm that sovereignty is inalienable, absolute and indivisible. Any other solution puts the people in chains. This radical statement implies either a kind of utopian form of government by a people involved in constant deliberation and decision-making processes or an embodiment by an illdefined sovereign such as that suggested by Thomas Hobbes. It is why Rousseau has often been considered as the intellectual father of totalitarian regimes. Another radical alternative was suggested 200 years later by Schumpeter who attributes to the people a single role: the choice of representatives. Like Rousseau, but in a different manner, he is convinced that, once that duty is accomplished, the power of the people is void up to the next election. Rousseau was condemning it,

Elite vs People  129 Schumpeter observes it as a plain fact and accepts it in the name of realism as well as efficiency. Both interpretations are obviously very frustrating since the people has at best, a very limited say in political affairs – and it is a negation of the democratic ideal – or is deprived effectively of its powers in the name of a ‘volonté générale’ as difficult to identify than to translate into democratic institutions and policies. A true fallacy. In reaction and opposition to these extreme views, many thinkers, political actors and policy-makers have tried to conceive and propagate intermediate interpretations over time and space. The most pragmatic have been for a long time the British who never placed the sovereignty in the people but who, through contorted but efficient transformations, maintained the sovereign monarch and transferred his/ her prerogatives to the Parliament. Up to the recent use of ‘consultative’(!) referenda, the people was not the sovereign. Brexit, from this point of view, has constituted a frontal shock between an old conception and a new one, while never dissipating the fog hiding the contradictions and conflicts between these antagonistic views. Actually, the Fifth Republic in its article 4, creates the same confusing melting of two diverse theories by stating that ‘La souveraineté nationale appartient au peuple qui l’exerce par l’intermédiaire de ses représentants et du référendum’. The art of reconciling the opposites. A.  The ‘Sovereignty of the People’ Convention The ‘people’ is at the core of the democratic construction. It has appeared as the only credible alternative to a power deriving from divinity, and the only possibility to provide legitimacy to republican governments. For the first time in history, the American and French Revolutions relied upon a concept which has become, step by step, the universal point of reference with very few theocratic remaining exceptions. However, this ostensibly undisputed principle is not as easy to implement in practice. In the line of Rousseau’s philosophy, the people is ‘one’ and its sovereignty ‘indivisible’. It is an abstract concept which can never be embodied: it is impossible to physically gather the ‘people’ which is never capable to express itself unanimously and whose members’ diversity is as great as the number of individuals which compose it. The sociological reality is at odds with the philosophical and legal proclamation. The irony is that at the time of this philosophical revolution, the reality was very far from the ideal proclaimed in the new constitutions. The American fundamental law may well have started with the famous and celebrated ‘We the People …’ but the actual people was male, excluded slaves, and the new Federal Constitution was adopted in Philadelphia by violating the mandate that the members of the convention had received from their respective states. The similar discrepancy could also be observed in France, where the Paris revolutionaries applied the same restrictions and ‘terrorised’ the country ‘in the name of the people’. Later on, Lincoln strengthened the illusion by coining a slogan as beautiful as it was illusory; a magnificent slogan which suffers from a major defect: who constitutes the ‘people’ and how to ensure that it is capable to choose, decide and control? It is the resolution of this dilemma that justifies the second convention as the basis of the democratic construction.

130  Yves Mény B.  The ‘Representative Principle’ Convention This principle is not by itself related to democracy. It has been used politically in England from the Middle Ages and as a legal instrument in many other countries as well. However, its prodigious extension derives from the incapacity to recreate the idealised Greek democracy in modern large polities. Since ‘the people’ cannot be assembled, its representation by selected representatives would become the solution to the stalemate induced by the concrete implementation of direct democracy. From the nineteenth century onwards, the representative principle would become the core of the democratic development. It has many political and practical implications: the organisation of elections, the possibility (or not) to set up political associations (parties), the relationship between the elected delegates and the government etc. However, this radical and novel reliance upon ‘people’s sovereignty’ failed to apply in practice. Actually, not every member of the people is entitled to vote and to contribute to the choice of representatives. And once elected, the delegate is not subject to an imperative mandate. As advocated by Edmond Burke, the delegate is free to decide according to his reason, reflection and choice, according to what he thinks is best and not according to the preferences of his electors. The ‘principal’ (the people), becomes the ‘agent’ and the agent (the delegate) becomes the principal. The representative principle convention is so crucial that it will become the key feature and the standard of what democracy is about: no democracy without representation. During the unfolding of the democratic construction, the principle has never been seriously challenged as principle, with few exceptions. Most of the criticisms and calls for improvement have focused on the (mal)functioning of its implementation: from restricted voting to universal suffrage; from male monopoly to sex equality; from rotten boroughs or gerrymandering to better designed constituencies; from party cartelisation to open competition; from narrow elite’s recruitment to better sociological representation. The main restriction to the representative principle has come from the admission that some functions would be better fulfilled by independent ‘experts’, for instance, in matters such as justice or economic regulation. However, the magnitude of this technocratic expansion and its related critique by ‘pure democracy’ ideologues, has greatly varied over time and space. C.  The ‘Majority Principle’ Convention Today, the ‘majority principle’ is the most diffused and widely accepted principle among democracies. According to this convention, ‘the first past the post’ or ‘the winner takes it all’. The winner may win by a large margin, or just by one vote and it does not make, politically or legally, a difference. However, the Anglo-American tradition mitigated the radicalism of this approach, by introducing another convention; the principle of moderation and of respect of the rights of the minority. James Madison, for instance was fearful of what he labelled ‘the tyranny of the majority’. On the contrary, the French tradition is a long story of majority domination and abuse inspired by Jacobin culture, whose latest radical manifestation was expressed in 1981 by a deputy of the left shouting to the opposition: ‘You are legally wrong because you belong to the political minority’.

Elite vs People  131 This democratic construction has been torn between two different and opposite directions. On one hand, it ensured that a country could be governed by a stable and undisputed majority. In that spirit, a whole set of rules and experiences have been tried in order to secure that objective (ie, electoral systems, constituencies, party discipline, parliamentary regulations etc). On the other hand, the Madison warning has contributed to fostering the creation of checks and balances, the protection of the rights of the minority, the invention of fairer electoral systems (proportional representation) and parliamentary safeguards in order to avoid the excesses of the majority. In some cases, there is even a deliberate will, in particular, in fragmented societies, to prevent a single party from obtaining and exercising power alone (ie, Netherlands, Israel). It has been successful in avoiding the control of power by a single party, but has favoured the cartelisation of party coalitions (ie, Austria, Nordic countries). Given the various limitations or biases brought about by electoral rules and the increasingly high levels of voting abstention, it is quite common that the ‘majority of the people’ does not represent more than one-third of the electorate. The majority rules, in spite of the dominant convention, become harder to legitimise and make acceptable policies and decisions imposed by a de facto minority. D.  The Citizen/Nationality Convention The democratisation process has evolved together with the construction of the Nation-State and in many cases it is difficult to decipher which development comes first. The two phenomena are actually intimately related and intertwined. Nations, as well as democracy, have a key concept in common – citizenship. The members and (supposedly) founders of the nation are its citizens, and democracy is based as well upon the will of these same citizens. It’s a lasting legacy of Athens’ democracy based on a narrow concept of autochtony and citizenship. However, this process of mutual reinforcement has not been linear. For instance, the US excluded slaves and after the Secession War, a de facto discrimination and legal segregation endured up to the 1960s. In the UK, British citizens were formally first and foremost, ‘subjects of the Crown’ while Irish citizens resident in the UK were entitled to vote. In a few countries (ie, Netherlands), foreign residents can participate in the local elections, an exception applicable to European citizens residing in one of the 27 EU Member States. These peculiarities are interesting cases, but the cast iron rule applicable to all the countries using elections in order to determine the selection of political elites, is that only citizens of a given nation can participate in the choice of their representatives. In practice, long-term foreign residents can benefit fully from every right granted to citizens except one: the participation in national political bodies identified with democratic regimes. This convention (broken, to my knowledge only by the French Constitution of the Year I/also known as the ‘Montagnard’ Constitution of 1793, but never implemented in practice), is both inclusive (everybody is citizen) and exclusive (only nationals can belong to the Republic body). The consequences of this binary choice in the course of the nineteenth century have been rather dramatic. It has exacerbated nationalism, contributed to the emergence of the minorities issue, permitted the secession of parts of composite states, accelerated the breaking up of empires and, even more

132  Yves Mény importantly, trapped the democratic idea and ideals within the borders of the nationstate. Two centuries after the twin American and French Revolutions which, little by little, made democracy feasible by linking it to the representative principle, thinkers and policy-makers are trapped in a new impasse: the ‘impossibility’ to conceive of democratisation beyond the Nation-State. In spite of the interesting attempts to infuse democracy in a regional body such as the European Union, democracy seems stuck at the national level and many argue that democracy is possible only within the Nation-State, in the same way that in the eighteenth century, democracy was considered a system fit only for small polities (ie, local communities) only. To sum up, democracies are structured by principles which determine their institutions, as well as their functioning. However, they can be challenged since, in actual fact, they are founded on social and political conventions. As long as these conventions are accepted (and in particular the ‘representation’ convention), democracy, as we know it, can work properly. It does not mean that these conventions cannot evolve and adapt, as testified by the changing meaning of ‘people’, ‘nation’, ‘majority’, and ‘representation’ over time or according to the vagaries of each culture. They can also be complemented by additional conventions, which are less stringent or not ‘universally’ accepted: for instance the intensity and diversity of the checks and balances, or the liberal components which limit the power of the majority. There are also possible divergences on the meaning of the ‘rule of law’ principle, or opposing views about the extent of the welfare state (very limited and not universal in the US, very generous and inclusive in the Nordic countries, for instance). But beyond these variations, the four conventions we have listed are considered as the necessary foundations of any democratic system. It is precisely these foundations which are challenged in various ways, by the many diverse populist movements, which have emerged again in the US and mushroomed in Europe, as well as in other regions. They usually avoid challenging democracy per se, but instead contest or interpret the ‘conventions’ that everybody considered as the sacred tables of the divine law, in a different way. One can indeed disagree totally with these new interpretations, but one has to recognise that this exercise of revision and contestation is perfectly legitimate. The democratic creeds are based on conventions, they are not self-evident truths. They are social and political constructs whose strength derives from their historical and political efficiency, but certainly do not preclude the possibility to envisage and construct alternatives. After all, the resilience of democracy is intimately related to its capacity to integrate and digest elements foreign to the idea of democracy stricto sensu, but which have become part and parcel of what we habitually define as ‘democratic’. We have forgotten their origins and their contradictions: from the fundamental rights to the role of experts, from the role of constitutional courts, to the checks and balances, all these key ingredients of democratic systems, are actually vivid contradictions of the idea that ‘le peuple est roi’. III.  THE PEOPLE AGAINST THE ELITE: THE POPULIST CHALLENGE

Populism is a movement born in the US at the end of the nineteenth century at a time of radical and sweeping economic, technological and social changes. It was the time

Elite vs People  133 of the so-called first globalisation, in other words, the incredible expansion of trade, commerce and exchanges favoured by revolutions in the means of communication (steam engines, telephone) and transportation (train networks, transatlantic transport, Suez and Panama canals etc). It was also a time of both an extraordinary growth and development and of concentration of wealth. The big cities as we still know them today (London, Paris, Vienna, New York, Chicago) were shaped during the 50 years preceding World War I. In parallel, lower strata of capitalist societies were suffering from exploitation and poverty in Europe, pushing millions of people to emigrate to the Eldorado of the time, the US. Many of these features seem to have been replicated over the past 30–40 years. However, during the first globalisation three or four empires were dominating the world and democracy was the exception. In Europe, ‘democracy’ (in a rather limited and narrow form) was a privilege of a few countries, mainly the UK and France, each in its own way and tradition while the US was embodying the single case of democratic regime beyond Europe. It was an ambitious aspiration affirmed both by the 1787 Constitution as well as by the successive Presidents and in particular Lincoln after its victory over the southern slavery states. His advocacy of the power of the people was not forgotten 20 years after his Gettysburg address and his speech became the rally point of all those dissatisfied with the growing inequalities and the domination of politics by corrupted capitalist elites. Contrary to what happened in many authoritarian regimes, dissatisfaction did not manifest itself through a revolutionary mobilisation. The anger and the protest were directed against the failures and the drawbacks of both the market and the state. The contestation of capitalism and democracy was not aiming at getting rid of this ‘couple’ but to correct their most salient defects and attempt to build up a fairer and more egalitarian system. The main objective was to give back power to the people and to put aside elites accused of betraying the mandate they had received from the people. ‘Oust the chacals out’ was the word of the day. The American populists had a plain and simple answer to the contradictions between people and elites: to give back full power to the people and get rid of the old political elite. On the basis of this proclamation, the populists position themselves vis-à-vis the democratic creeds/conventions and put forward many radical proposals, many of which were adopted later on, in spite of being unable to win national and presidential elections. The populist programmes of today do not differ that much from that early blueprint. A.  A Common Reference Point and Diverging Interpretations: the People As stated by Margaret Canovan,7 if populism has an ideology, it is ‘the ideology of the people’. Indeed, the ‘people’ is at the core of the populist claims. Left and right populist movements claim to speak for the people, to be ‘the’ people betrayed by the elites. They also share with democratic elites the reference to ‘the people’ as a unique



7 M

Canovan, Populism (Harcourt Brace Jovanovitch, 1981).

134  Yves Mény source of legitimacy. However, a marked divergence stems from the way ‘people’ is defined. In classical democratic theory, ‘the people’ is an abstract concept, embracing all the members of the nation, independently of race, age, gender or social position. This theoretical inclusiveness (which leaves aside only the foreigners), does not exclude actual distinctions based on selection (ie, choice of representatives) or expertise/knowledge (ie, delegation of powers to the competent knowledgeable persons). These elites act on the basis of a direct delegation by the voters (who might be actually a minority) or by a sub-delegation of the representatives to experts. All are supposed to work ‘for’ the people on the basis of these delegations, which contribute to make ‘democracy’ feasible and manageable. Democracy, as we know it, is based on mediation, and as stated by Schumpeter, the only power of the people is to choose, and possibly sanction or reward the representatives, on the occasion of the next election. Consequently, society is divided into two strata: one which holds the ultimate power of choice and sanction, but cannot do anything between two electoral consultations; and an elitist group, which directly or indirectly controls and detains power in every segment of society, in particular, at a political level. It is a vertical structure divided between the top and the bottom. The populists – all populists without exception – reject this vertical division and introduce a holistic perspective: ‘the people’ means everybody in society, but excludes the elites, which are rejected as corrupt, incompetent or self-interested. The ‘people’ according to this vision, is the ‘real people’, the people of the street, the people of the bar, the people who are denied a say, the sovereign whose power has been hijacked for the profit and benefit of the few. The populist programme is to bring back those marginalised and excluded, to make the people’s voice heard. This implies a major use of direct democracy, in order to make sure that those in power execute the ‘will of the people’. A recent example has been offered by the Italian 5 Stars Movement (M5S) after the March 2018 elections. The Movement became the first Italian party and received more than 30 per cent of the votes. After several weeks of discussions and bargaining, M5S concluded a ‘contratto di governo’ with the Lega, and decided to submit the project to the approval of their party members. Indeed, M5S has extensively used electronic means of communication as a modern and effective way to put direct democracy in to practice. The activists of M5S were asked to approve or not the political deal. Over 40,000 M5S members expressed a vote on the so-called ‘Rousseau’ electronic platform and the vast majority approved the deal. The contrast could not be greater: on the one hand, more than 10 million voters had voted for choosing ‘their’ representatives, and on the other hand, a direct consultation of the Movement’s activists had triggered the participation of a few thousand registered members. The irony of this situation revealed a contradiction between discourse and plain reality: the Movement had, in a very short period of time, brought to light the emergence of a new elite, in spite of all the populist rhetoric. The Movement could march to power with the blessing of 40,000 activists: a new ‘elite’ was born! In spite of their fierce criticism of the representative system, populists, in most democracies, can obtain access to power, only by using the representative parliamentary mechanisms already in place. In other words, before having the possibility to

Elite vs People  135 introduce institutional changes to rebuild democracy as the populists see fit, they have to swallow the representative pill. However, the populist movements have been more successful in forcing the traditional political forces to take up part of their political agenda and accept the reforms they have advocated: it was the case in the last years of the nineteenth century in America, or presently in many European countries where the populists have pushed for the use of referenda. Even when they have been successful enough in their promotion of an unmediated democracy, they are faced with an even bigger challenge: how to transform the theoretical and undisputable supremacy of the people into workable mechanisms involving the whole people? As there is no feasible and realistic solution even in times of revolutionary technology, the way out is often found in the worst possible manner: pretending that one man is ‘the’ voice of the people, the true and sole interpreter of the people’s will and aspirations. The populists dislike the ‘representatives’ but, at the end, put themselves in the hands of a single individual. The ‘people’ is embodied in one single person, a leader who pretends, and may be recognised indeed by the masses, as the one who speaks best for themselves. This solution is obviously a fallacy. First of all, because it pushes the essence of representation to the absurd: ‘the people’ is not represented in its diversity by hundreds of representatives, but by a single individual! Secondly, because this monopoly of representation is a slippery slope: the ‘masters’ become followers of a leader, who is, more often than not, tempted by authoritarianism. The people’s movements become the subordinate mass party, at the disposal of the leader with no limits, and no checks and balances. The ‘rule of the majority’ might rapidly become the undisputed and authoritarian iron rule of a single person, as both history and present developments testify. An hobbesian nightmare. When acceding to power, the populist movements face two major risks: the first one is to succumb to the illusions of full and constant participation of the masses, as well as to the illusory charms of spontaneity. The risk is that the unanimity against the old elites may quickly transform itself into deep divisions along interest lines. Conflicts may soon become more acute and move from the assembly to the streets. The second risk is the illusion that citizens are available for constant participation and involvement. Actually, the majority of citizens are not ready to sacrifice the limited free time available for their private and family duties to the benefit of public involvement. As shown by Albert Hirschman,8 civic participation is neither constant nor linear. They are cycles and alternation between private and public mobilisation and participation. By necessity, the exercise of power has to be delegated (or taken over) by new ‘elites’. In the end, populism might be nothing more than a radical ‘sweeping operation’ of elite change, which is normally observed at times of revolution or post-war periods. The ‘dégagisme’, has no real programme, ideology or philosophy. It is best encapsulated by the People’s Party slogan in the final years of the nineteenth century ‘Throw the jackals out’ or by the Poujade’s slogan in the 1950s in France, ‘Sortez les sortants’ (Oust the incumbents!) Nothing less, nothing more ?

8 A Hirschman, Shifting Involvements: Private Interests and Public Action (Princeton University Press, 1982).

136  Yves Mény B.  The Paradoxical Impact of Populism on Democracy Democracy, as we know it today, is a mixed bag, a ‘bricolage’9 resulting both from historical adaptations and from a succession of ‘trial and error’ processes. Far from being the simplistic ‘government of the people, for the people, by the people’ which remains an ideal rather than a full set of rules and institutions, democratic regimes are complex systems which have integrated many components and features from different origins, some of which were even initially conceived as impediments to the power of the crowd. They have also borrowed instruments born in different contexts or conceived as direct expressions of the popular will. There is not a universal blueprint or rules to follow, beyond a limited number of principles that each country has adapted, according to its own needs and creeds. In the successive phase, the ‘good practices’ observed in one country or set of countries, might be borrowed and imported by others, with necessary adjustments. For the time being, and contrary to what the People’s party managed to get in many American states, the populist parties in Europe have not been in a position to impose their institutional preferences. They have only been able to distort the existing instruments, such as in Hungary, for instance. As they are most of the time part of a coalition, it is difficult to impose their preferences on reluctant partners, unless they manage to get a full majority. But in many countries they have succeeded in substituting themselves, at least for a part, to the old dominating elites. The most spectacular case is represented by Italy where newcomers have swept out most of the elites who dominated the Peninsula’s political life since World War II. Sabino Cassese talks of ‘una svolta’, a U-turn.10 Any mediation is perceived as a potential for treason: central bankers, courts and judges, as well as the European Commission, become the favourite target of the populists. Independent bodies are subject to the same criticism. Pluralistic views are rejected for the benefit of a pure and cohesive social body. From Turkey to Poland, Hungary to Israël, and America to Venezuela, the many forms of populism join together in attempting to erase the rules or institutions, which limit the aspirations of the people (or rather of the leader who expresses them). In spite of fighting both elites and representation in the name of the ‘sovereign people’, the populists have been largely unsuccessful in putting down the basic principles of existing democracies. First, because, in most cases, they do not have full control of the majority in Parliament, and have to be associated with other parties in a coalition government. And more importantly, because in practice, there is no real viable alternative to the efficient principle of representation. ‘Governing by the people’ does not last more than a few days of excitement, and usually ends in authoritarian, or despotic governments But the type of solutions they propose or apply when in power, do not provide a blueprint for the future. Bluntly said, it is a politics of regression.11



9 Mény

(n 5) 43. (n 3). Geilselberger (ed), The Great Regression (Polity Press, 2017).

10 Cassese 11 H

9 The Double Fiction of the People CESARE PINELLI*

I.  SOVEREIGNTY AND THE PEOPLE

I

n the constitutions as well as in theoretical discourses, the concept of the people is closely intertwined with that of sovereignty. And both pertain, together with democracy, representation, citizenship, and the rule of law, to the family of ‘essentially contested concepts’.1 Sovereignty is a concept deeply rooted in the rise of the modern state in Europe, and has been used since then in a range of versions going from omnipotence of the sovereign power’s holder, thus conceived as a never-ending source of constitutional legitimacy, to a mere synthesis of the constitutionally established authorities. Whenever structured in these terms, debates prioritise the venerable category of sovereignty over that of the people, which is thus likely to be reduced to a mere successor of the sovereign state. A different perspective is afforded by inquiring into how ‘the people’ as such is presented and discussed, departing from the issue of whether it corresponds to a natural entity, or it pertains to the artificial concepts inhabiting constitutional theory. For the purposes of this contribution, such issue goes back to the controversy between Carl Schmitt and Hans Kelsen, each one reproaching the other for relying upon a fictitious people, and will be later re-shaped with the emergence of a conception of the Constitution’s legitimacy based on the presumption of the people’s values correspondence with constitutional principles. Such conception, it is contended, should function as a term of reference for giving an account of the current malaise of constitutional democracy, to the extent that it involves the people’s relationship with the Constitution. It is against such background that the reappearance of the fictitious claim of the people as a natural entity needs to be viewed, with the related question of whether it should be considered a cause, or instead a symptom, of the democracy’s malaise. A response, it is argued, would usefully orient the recent debate on the populist surge, which runs the risk of being affected by a ‘Babelian confusion of voices’.2

* University of Rome Sapienza. 1 WB Gallie, ‘Essentially contested concepts’ (1956) 56 Proceedings of the Aristotelian Society 167–98. 2 Editorial, ‘What is Populism? Who is the Populist?’ (2018) 5(2) Democratic Theory VI.

138  Cesare Pinelli II.  SCHMITT’S PEOPLE AS ‘A POLITICAL UNITY’ AND THE IDENTITY PRINCIPLE

The notion of the people as a fictitious entity had already emerged a century ago, in the controversy that opposed Carl Schmitt to Hans Kelsen on the relationship between democracy and liberal individualism. For both the universal (male) suffrage was reached due to a common struggle of democracy and liberal individualism against royal absolutism, and the main reference of democratic theory was Jean-Jacques Rousseau. However, they interpreted even these common elements in opposite ways. For Schmitt, the crisis of parliamentarism ‘springs from the consequences of modern mass democracy and in the final analysis from the contradiction of a liberal individualism burdened by moral pathos and a democratic sentiment governed essentially by political ideals. A century of historical alliance and common struggle against royal absolutism has obscured the awareness of this contradiction’.3 Elsewhere he speaks of the state’s ‘two opposing formative principles’, namely that of ‘identity (specifically, the self-identity of then existing people as a political unity, if, by virtue of its own political consciousness and national will, it has the capacity to distinguish friend and enemy)’, and that of ‘representation, through which the government represents the political unity’.4 Implementation of the former ‘signifies the tendency toward the minimum of government and personal leadership. As this principle is realised to an ever-greater degree, the resolution of political affairs occurs ever more “of itself” thanks to a maximum of naturally given or historically achieved homogeneity. That is the ideal condition of a democracy, as Rousseau presupposes it in the “Contrat social”’. To the contrary, ‘a maximum degree of representation would mean a maximum amount of government. So long as it is genuinely at hand, it could get by with a minimum of homogeneity of the people and could form a political unity out of national, confessional, or diverse class-based human groups. The danger of this condition is that the subject of the political unity, the people, is ignored and the state, which is never anything other than a people in the condition of political unity, loses its substance. That would then be a state without people, a res populi without a populus’.5 Vis-à-vis that dilemma, Schmitt takes clearly the position for ‘the self-identity of the genuinely present people, which is not a type of representation. What is meant by the word “identity” is the existential quality of the political unity of the people in contrast to any normative, schematic, or fictional types of equality. [….] Under this presupposition, it is thoroughly correct when Rousseau states that what the people will is always good. Such a principle is correct not on the basis of a norm. It is correct because a people’s existence is based on its homogeneity’.6 Not only does Schmitt use the theory of the pouvoir constituant for asserting that competencies constitutionally assigned to the people, such as elections and instances

3 C Schmitt, The Crisis of Parliamentary Democracy. Preface to the Second Edition (1926) (The MIT Press, 2000) 72. 4 C Schmitt, Constitutional Theory (1928) (Duke University Press, 2008) 247–48. 5 ibid. 6 ibid 264–65.

The Double Fiction of the People  139 of voting, do not exhaust its existence ‘as an entity that is directly and genuinely present, not mediated by previously defined normative systems, validations, and fictions’,7 he also discredits the representation principle as being founded on a fiction. Even with the imperative mandate, that would eliminate the representative character of the popular assembly, ‘voting would be continuous, but not by the people as a unity. It is also revealed here that the people cannot be represented, as Rousseau rightly emphasised. The people are either entirely present and engaged or generally not involved, and in this case the people are not represented. Instead, the political unity as a whole is. The idea of representation contradicts the democratic principle of self-identity of the people present as a political unity’.8 How could, then, this ‘political unity’ express itself? ‘The natural form of the direct expression of a people’s will’ is for Schmitt ‘the assembled multitude’s declaration of their consent or their disapproval, the acclamation. In modern, large states, the acclamation, which is a natural and necessary life expression of every people, has changed its external form. In these states, it expresses itself as “public opinion”’.9 Although the latter ‘arises and exists in an “unorganized” form’, with the inherent danger ‘that invisible and irresponsible social powers direct public opinion and the will of the people’, the answer ‘lies in the essential presupposition of every democracy. The danger is not great as long as there is a substantive democratic homogeneity among the people, and as long as the people have political consciousness that can distinguish between friend and enemy. If the substantive prerequisites of democracy are displaced, no organization or statutory norm serves as a remedy’.10 Schmitt’s notion of the people as a ‘political unity’ remains legally indeterminate, namely irreducible to the people’s qua electorate, whereas it contains a maximum degree of political determination, being referred to a homogeneous collectivity expressing itself through acclamation. The notion’s legal indeterminacy, with the emergence of an autonomous political sphere, has deeply attracted various schools of thought, going from Italian post-marxism during the 1980s to American post-modernism in the following decade. The ‘Schmittian renaissance’11 tends, however, to obliterate the inescapable connection of Schmitt’s demystification of representative democracy with his insistence on concepts such as ‘the natural form of the direct expression of the people’s will’, ‘substantial homogeneity’, or ‘identity’, whose reality is just taken for granted. Furthermore, the very mechanism through which such a people expresses its own will, acclamation, should not escape the objection which Schmitt raises to the majority principle, namely that ‘The substantive decision is often already rendered by the manner of posing the question.’12 The same occurs with acclamation, with the effect that the identity of the governor with the governed cannot be achieved. Here Schmitt hides power through a further fiction. Unsurprisingly, the theory of identity hosted in



7 ibid

271. 289. 9 ibid 131. 10 ibid 274–75. 11 On which see WEScheuerman, Carl Schmitt. The End of Law (Rowman & Littlefield, 1999). 12 Schmitt (n 4) 304. 8 ibid

140  Cesare Pinelli Constitutional Theory will lay the basis for a sequence of works aimed at legitimising ‘the concrete constitutional situation of the present day’ on the eve of the Nazi regime’s establishment.13 III.  THE DOUBLE FICTION OF THE PEOPLE IN THE KELSENIAN CONCEPTION OF DEMOCRACY

Kelsen’s view resembles that of Schmitt on the ground that ‘The battle, which was waged against autocracy at the end of the eighteenth and at the beginning of the nineteenth centuries, was essentially a battle for parliamentarism. A Constitution would give parliament decisive influence in government and put an end to the dictatorship of the absolute monarch and the privileges of the estates.’14 However, contrary to Schmitt he adds that, when parliamentarism ‘has achieved complete and absolute dominance, as is the case today, [….] the decision regarding parliamentarism is at the same time a decision regarding democracy’.15 And the former ‘means government by a collegial organ democratically elected by the People based on universal, equal suffrage and the principle of the majority’.16 The question of how could the majority principle be reconciled with universal suffrage was thus for Kelsen crucial both for democracy and for parliamentarism. Although considering Rousseau ‘possibly the most important theorist of democracy’,17 he criticised his famous warning that the English people is free only when it elects the MPs, with the consequent advocacy of direct democracy: Even if the ruling will of the state is formulated by direct popular vote, however, the individual is free only at the moment he casts his vote, and even then only if he votes with the majority, not if he belongs to the overruled minority. Thus, the democratic principle of freedom appears to demand that the possibility of being overruled be minimized: a qualified majority and possibly even unanimity are required as guarantees for individual freedom. Given that practical politics are defined by conflicts of interest, however, such guarantees are so implausible that even a radical apostle of freedom like Rousseau requires unanimity only for the original contract that initially creates the state.[….] This consequence clearly reveals the incompatibility that exists between the idea of individual freedom and the idea of social order. Such an order, by its very nature, is possible only if its validity is objective, i.e., ultimately independent of the will of those subject to that order.18

Given the contrast ‘between the idea of individual freedom and the idea of social order’, an absolute majority represents for Kelsen ‘the relatively greatest approximation to the idea of freedom’.19 As he adds bluntly, ‘social reality is rule and leadership. [….] In this regard, democracy is characterised not by the fact that the 13 On this see D Grimm, ‘The Concept of Constitution in Historical Perspective’ (1990) in Constitutionalism. Past, Present, and Future (OUP, 2016) 122. 14 H Kelsen, The Essence and Value of Democracy (1929 2nd edn) (Rowman & Littlefield, 2013) 30. 15 ibid 31. 16 ibid 32. 17 ibid 5. 18 ibid. 19 ibid 6.

The Double Fiction of the People  141 ruling will is the will of the People, but rather that a broad segment of the subjects, that the largest possible number of the community’s members, participates in government. Even this participation, however, is generally limited to a certain stage of the process (commonly referred to as the legislative sphere) and consists only in the creation of the legislative organ’.20 What really differentiates democracy from autocracy, he argues, ‘is not the lack, but the abundance of leaders’, who are selected through election,21 while autocracy ‘covers up the most important problem in politics with a mystical-religious veil, which conceals the birth of the divine hero from the profane masses. In truth, this means that the answer to the question of who should become leader and how they should do so is left to the arbitrariness of force’.22 Under democratic regimes, he contends, the idea of freedom is instead ‘transformed from a rejection of leadership into the idea that leadership should be open to everyone’, and ‘the demagogic assumption that all citizens are equally capable of performing any particular political function’ is turned into ‘the mere possibility that all citizens can be made capable of performing these functions’.23 On the other hand, ‘there is nothing more problematic than this unity which goes by the name, the People. Sociologically, it is riddled with national, religious, and economic differences and thus represents more a bundle of groups than a coherent, homogeneous mass. Here, one can speak of unity only in a normative sense. As a consensus of thoughts, feelings, and wills and as a solidarity of interests, the unity of the People is an ethicalpolitical postulate. National or state ideology asserts the reality of this postulate by way of a common, no longer questioned, fiction’.24 Kelsen’s assumption of the fictitious concept of ‘the people’ is twofold, be it viewed through the lens of the identity principle, to borrow the Schmittian categorisation, or through those of the representation principle. Not only ‘the people’ is for him affected by national, religious and economic differences that only legally can be reduced to unity. He is also convinced of ‘the glaring fiction inherent in the theory already articulated in the French Assembly of 1789 – that parliament by its very nature is nothing more than a representative of the People, whose will alone is given expression in parliamentary acts –’.25 Furthermore, ‘various apologists for the idea of popular sovereignty’ presuppose for him ‘that the People, and only the People, are in possession of the truth and have insight into what is good. [….] Even Rousseau is not far from doing so, when he justifies the binding nature of majority decisions, that is, the authority of the majority, on the basis that the minority has erred regarding the true content of the volonté générale. But everyone suspects that the defenders of democracy are making use of an argument here, which is foreign to the very nature of democracy. That which was able to demand popular acceptance due to a single leader’s charisma cannot be



20 ibid

83. 91. 22 ibid 94. 23 ibid 95. 24 ibid 16. 25 ibid 33. 21 ibid

142  Cesare Pinelli transferred to the many of the anonymous mass, to the average citizen: the claim of a highly personal relationship to the Absolute or to God, as whose messenger, instrument, or son the autocrat appears’.26 Here Kelsen’s criticism of popular sovereignty shifts from the sociological consideration of the people as ‘a bundle of groups’ to the epistemic assumption ‘that only relative truths and values are accessible to human cognition and that, consequently, every truth and every value must – just as the human individual who finds them – be prepared to abdicate its position and make room for others’.27 But both arguments aim at defending democracy, if conceived as a regime that offers every political conviction the opportunity to express itself and to compete openly for the affections of the populace. That is why the dialectical process in both the popular assembly and parliament, which is based on speech and counterspeech and paves the way for the creation of norms, has been identified – not incorrectly – as being democratic. The rule of the majority, which is so characteristic of democracy, distinguishes itself from all other forms of rule in that it not only by its very nature presupposes, but actually recognizes and protects – by way of basic rights and freedoms and the principle of proportionality – an opposition, i.e., the minority. The stronger the minority, however, the more the politics in a democracy become politics of compromise. Similarly, there is nothing more characteristic of the relativistic worldview than the tendency to seek a balance between two opposing standpoints, neither of which can by itself be adopted fully, without reservation, and in complete negation of the other.28

Far from reflecting nostalgia for the oligarchical regimes of the nineteenth century, the Kelsenian theory of democracy aimed at coping with the challenges which the contextual rise of universal suffrage and of party politics posed to continental Europe’s regimes. Although the fate of the Weimar Republic brought scholars to depict it as merely ‘formalistic’, if not as tending to legitimise whichever regime, for others it was ‘contempt of actual democracies, sometimes couched in terms of the defence of the “real” democratic ideals’, that contributed to the inter-war rise of dictatorships, while Kelsen’s theory defended ‘the viability of a realistically interpreted democratic ideal in a hostile world’.29 Born in the midst of a conflict between Weltanshauungen, the Schmitt v Kelsen controversy might appear a century later outdated for a number of reasons. And yet, their opposite approaches to ‘the people’ are likely to resonate in the reflections on contemporary democracies, concerning what still remains the most unmanageable concept among those generally used by constitutionalists. IV.  CONSTITUTIONAL DEMOCRACIES: COMMON ELEMENTS

Continental Europe’s post-totalitarian countries, including those that established a democratic system with the fall of the communist regime, experimented with a new 26 ibid 102. 27 ibid 103. 28 ibid. 29 E Lagerspetz, ‘Kelsen on Democracy and Majority Decision’ (2017) Archiv für Rechts-und Sozialphilosophie 20.

The Double Fiction of the People  143 stage of their constitutional experience. The principle of popular sovereignty was there re-shaped due to recognition of social and cultural pluralism, to the strengthening of the rule of law mechanisms, and to the admission of certain limits to national sovereignty for the pursuit of international security and peace. For some, these elements compose a conception of constitutionalism that ‘views the fundamental tenets of constitutional law as expressing universal, liberal, Enlightenment principles, whose authority is superior to that of all national politics, including national democratic politics’, allowing ‘constitutional law, interpreted by unelected judges, to countermand all governmental actions, including laws enacted by democratically elected legislators.’30 To the contrary, ‘American, or democratic, national constitutionalism’ holds ‘that a nation’s constitution ought to be made through that nation’s democratic process, because the business of the constitution is to express the polity’s most basic legal and political commitments. These commitments will include fundamental rights that majorities are not free to violate, but the counter-majoritarian rights are not therefore anti-democratic. [….] Over time, from this perspective, constitutional law is supposed to evolve and grow in a fashion that continues to express national interpretations and reinterpretations of the polity’s fundamental commitments’.31 Such opinion underestimates both the common elements affecting constitutional democracies worldwide beyond cultural cleavages, and the challenges which they currently share. A ‘problematic relationship’ between ‘two constitutional premises – the government of the people by the people and the government of the people by laws –’32 is discernible not only in the US, but also in Europe and elsewhere, as far as constitutional democracy is held as a form of government combining principles and institutions corresponding to different modes of legitimacy, namely popular election of the political representatives and the rule of law in the sophisticated version available with the introduction of constitutional justice. Settlements of the power’s structural divide are there made dependent on how power should be exerted in compliance with democratic constitutions that recognise the rights of citizens outside the realm of politics, and in the meanwhile give citizens the chance to maintain the legitimacy of such a realm through the exertion of their own political rights. The spheres of democracy and of the rule of law are therefore structurally divided in terms of power to the extent that such division is reputed to be instrumental to the exertion of citizens’ fundamental rights, the political ones included. Conflicts might of course arise between these principles and institutions, some of which even reveal an internal ambivalence: the majority principle can be viewed either as the main expression of political power or as the product of democratic compromise, to the extent that it presupposes an opposition. In that event, various kinds of adjustments are, though, constitutionally provided, that are open themselves to diverse interpretations, hence providing a flexibility that has proved to give 30 J Rubenfeld, ‘The Two World Orders’ in G Nolte (ed), European and US Constitutionalism (Council of Europe Publishing, 2005) 236–37. 31 ibid. 32 F Michelman, ‘Law’s Republic’ (1988) 97 The Yale Law Journal 1493.

144  Cesare Pinelli constitutional democracies the opportunity of absorbing even strong tensions, if these do not challenge the very system’s premises. V.  THE POPULIST CHALLENGE

While challenging constitutional democracy from within, populist parties fall into the latter hypothesis. Their appeals to ‘the people’ seemingly rely on the principle of popular sovereignty at the expenses of the rule of law and of respect for political or cultural minorities. And, once in power, they follow a winner-take-all approach, paying lip service to the majority principle. Hence derive ‘constitutional retrogressions’ such as dismantlements of interbranch checks, perpetrated inter alia in Poland and Hungary through court-packing operations and modifications of the competences or of the financial independence of constitutional courts. These provoke an erosion of the rule of law notwithstanding the observance of formal legality.33 In the same direction goes the increasing use of constitutional amendment or replacement aimed at making ‘a state significantly less democratic than it was before’, namely a regime with ‘a relative absence of accountability and a lack of rights protection’.34 Constitutional retrogression is deemed as consisting in ‘a simultaneous decay in three institutional predicates of democracy: the quality of elections, speech and associational rights, and the rule of law’.35 More subtle threats to democracy emerge here than those posed by totalitarianism, since at least formally free elections continue to be held. It is this feature that qualifies these regimes as ‘hybrid’, or as standing in-between constitutional democracy and the totalitarian state. Fundamental rights may therefore be seriously restricted, independence may be jeopardised for the judiciary and non-majoritarian authorities, but elections are taken, whatever their democratic quality might be: ‘These regimes generally satisfy international actors in that they are sufficiently democratic to avoid sanctions and other consequences – elections are held, and they are not mere shams. There is enough electoral competition for opposition forces to compete and occasionally win. But at the same time, the deck is systematically stacked against those trying to unseat incumbents through a variety of means’.36 But why do constitutional democracies appear helpless vis-à-vis the populist surge? It should first be noted that populist parties or movements are not, nor should they be, legally contrasted. Even in Germany, whose Basic Law allows the Federal Constitutional Court to declare the dissolution of any political party that seeks to undermine or abolish the free and democratic order or to endanger its existence (Article 21 BL), the court refrained from adopting such a measure against such an

33 GA Tóth, ‘Constitutional Markers of Authoritarianism’ (2018) Hague Journal on the Rule of Law 17. 34 D Landau, ‘Abusive Constitutionalism’ (2013) 47(189) University of California, Davis 195 and 200 respectively. 35 A Huq and T Ginsburg, ‘How to Lose a Constitutional Democracy’ (2018) 65 UCLA L.Rev. 78 117. 36 Landau (n 34) 199.

The Double Fiction of the People  145 ultranationalist party as the NPD,37 thus declining ‘to provide further fodder for the populists’ familiar narrative that the establishment systematically suppresses the voice of “the people”’.38 As affirmed by the FCC’s President, reactions to the populist challenge should derive primarily from the political process itself.39 Nor does Article 7 TEU provide restrictions of the populist governments’ conduct as such, being referred to the existence of systemic violations by a Member State of the ‘common values’ enumerated in Article  2 TEU, including ‘the rule of law and respect for human rights’. On the other hand, its enforcement mechanisms rest ultimately in the hands of national governments as represented in the European Council. Their current inertia should be blamed vis-à-vis what has been called ‘the purposeful destruction of the rule of law inside EU member states’.40 At any rate, it is due to political reasons, rather than legal. The idea that responses to populism should come from politics itself reflects a core principle such as pluralism, which constitutional democracies could not renounce without betraying themselves. It is respect for pluralism, together with the rule of law, that impedes whichever degeneration of majoritarianism into the winnertake-all rule, thus rendering inter alia unpredictable the electoral outcome. To the contrary, populist regimes deny in practice the reversibility of political power, with the majority in charge willing to rest in power by all means: pluralism is there variously obstructed because it might hamper such possibility, not because it contrasts with an ideological tribute to the people’s will. Respect for pluralism engenders thus a structural asymmetry in terms of power, that gives populists a competitive advantage on their adversaries. However, absence of legal reactions against populist parties or governments does not tell us enough about why constitutional democracies appear helpless vis-à-vis the challenge that is thus at stake. To this end, an inquiry is needed into how the people are conceived in these democracies, and then into whether such conception can interpret the social transformations we are assisting with. Both issues will drive us far beyond that of populism. VI.  THE PEOPLE’S VALUES AS A KEY FACTOR OF THE CONSTITUTION’S LEGITIMACY

According to Neil MacCormick, popular sovereignty ‘does not imply or presuppose the existence internal to the state of any constitutional or political organ enjoying either legal or political sovereignty in the internal sense. Indeed, it is the absence of any such organ – king, president, or Parliament, or whatever – that forces us to identify the people as the ultimate possessor of the sovereignty of their state. This does 37 Federal Constitutional Court, 17 January 2017, Neue Juristische Wochenschrift 611, on which see L  Schuldt, ‘Mixed Signals of Europeanization: Revisiting the NPD Decision in Light of the European Court of Human Rights’ Jurisprudence’ (2018) German Law Journal 810, 817. 38 A Pirang, ‘Renaissance of Militant Democracy?’ (27 March 2917), see www.lawfareblog.com. 39 A Voßkuhle, ‘Demokratie und Populism’ (2018) Der Staat 120, 134. 40 J-W Müller, ‘Reflections on Europe’s “Rule of Law Crises”’ in PF Kjaer and N Olson (eds), Critical Theories of Crisis in Europe. From Weimar to the Euro (Rowman & Littlefield, 2016) 162.

146  Cesare Pinelli not mean that there is an entity “the people” that has an existence distinct from or prior to their constitution. On the contrary, they count as “a people” by virtue of the constitution that makes them so’.41 In a similar vein, Pierre Rosanvallon assumes that democracy is founded on a fiction both because it shapes the people as an artificial body, and because it requires universal rules for governing society, thus presupposing a permanent indeterminacy of the concrete people.42 Far from presupposing the people as a substantial homogeneous entity, democratic constitutions are here believed as constructing the people as holder of sovereignty. Such account leaves thus the Schmittian theory of identity outside the perimeter of the people’s constitutional concept. But do these constitutions incorporate the Kelsenian assumption, somewhat echoed by MacCormick, of the people as a mere fiction, corresponding to a bundle of groups whose definition as a whole solely depends on the Constitution? Under democratic constitutions, the people compose a community sharing something more than the procedures that make it an electorate. It also shares a certain set of values that are constitutionally translated into principles. It is the presumption that the translation corresponds to the people’s credence – or ‘the expectation’ that people have about the laws under which they live – that confers legitimacy to the constitution.43 ‘It is the very purpose of our Constitution’, wrote Justice Brennan, ‘to declare certain values transcendent, beyond the reach of temporary political majorities’.44 These values transcend thus the political majorities of the moment, without being considered metaphysical, or morally indisputable, truths; on the contrary, they may count as evaluations of the common interest, provided that they are projected beyond mere political contingencies. Accordingly, the people are presumed sovereign on the ground that they are provided with the choice of repudiating the values they shared when the Constitution was formulated. It is the very Constitution’s endurance that depends on that choice. Whenever constitutional principles fail to reflect the people’s utmost cherished values, the Constitution ceases as well to exert its function of ensuring the stability of a certain legal order. The Constitution’s relationship with the people is thus grounded on a conventionalist premise, namely the translation of popularly perceived values into constitutional principles. While remaining free, whichever choice of the people regarding their further adherence to those values is thus provided with a term of reference. In this sense, sovereignty can no more be intended as omnipotence even with respect to the people’s ultimate power of denying the constitutional principles’ congruence with their own present values. 41 N MacCormick, Questioning Sovereignty. Law, State, and Nation in the European Commonwealth (OUP, 1999) 131. 42 P Rosanvallon, Le peuple introuvable. Histoire de la représentation politique en France (Gallimard, 1998) 22 ff. 43 J Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (MIT Press, 1996) 447. 44 WJ Brennan, ‘The Constitution of the United States: Contemporary Ratification’ (1986) 27 S.Tex. L. Rev. 436.

The Double Fiction of the People  147 On the other hand, democratic constitutions presuppose such a possibility, having abandoned the pretention of possessing time, be they the Lycurgus’s eternal constitution or the opposite claim reflecting a revolutionary epoch, that each generation should master its own future. The amending procedures may demonstrate this point, as well as the poor predictive capacity of constitutional principles. It should rather be noted that, while structuring the interplay of the authorities that are variously enabled to pursue these principles, democratic constitutions rely on time. Memories of the constitutional past are thus differentiated, and transformative virtues and self-correction among citizens are correspondently enhanced, with a view to preparing the future.45 Constitutions exert thereby an integrative together with a normative function, although different accounts may of course be afforded of the relationship between these functions. For some, ‘A written constitution’s normative force depends ultimately on whether it works to recall a people to itself over time: a means by which a people re-collects itself and its fundamental commitments.’46 For others, ‘A constitution will have an integrative effect if it embodies a society’s fundamental value system and aspirations, if a society perceives that its constitution reflects precisely those values with which it identifies and that are the source of its specific character.’47 Therefore, ‘a constitution can confer identity only as long as the system it has established is perceived as being a “good” one. If the society living under this system does not see the system as good, it will reject the very constitution that gives the system a binding character and protects it with its instruments of power. In this case the constitution no longer contributes to a society’s integration and in the end fails even in fulfilling its legal function. This was the fate of the Weimar constitution’.48 Contrary to Kelsen, for whom it was nonsensical, a notion of the people’s identity is thus suggested in contemporary constitutionalism. It runs, however, in the opposite direction of the Schmittian identity principle. VII.  IDENTITY AS SAMENESS AND IDENTITY AS SELFHOOD

Relying on Paul Ricoeur’s key distinction between an idem identity, as the identity of something that is always the same which never changes, and an ipse identity as sameness across and through change,49 Michel Rosenfeld assumes that self-identity ‘can either connote sameness or selfhood’ even while ‘conceived as belonging to a collective self’.50 Being a social construct regarding what each community thinks of itself, a people’s identity may vary according to whether it ascribes to the people

45 Y Hasebe and C Pinelli, ‘Constitutions’ in M Tushnet, T Fleiner and C Saunders (eds), Routledge Handbook of Constitutional Law (Routledge, 2013) 18. 46 J Rubenfeld, Freedom and Time. A Theory of Constitutional Self-Government (Yale University Press, 2001) 177. 47 Grimm (n 13) 148. 48 Grimm (n 13) 149. 49 P Ricoeur, Soi-même comme un autre (Seuil, 1990). 50 M Rosenfeld, ‘Constitutional Identity’ in M Rosenfeld and A Sajó (eds), The Oxford Handbook of Comparative Constitutional Law (OUP, 2013) 757.

148  Cesare Pinelli the pretention of looking the same through different generations, or the possibility of recognising its own distinct self from all other selves despite the changes which occurred to it through different generations. A choice for the latter seems reflected in the assertion that the place and function of constitutional identity, as distinguished from the national, ‘is determined by the need for dialectical mediation of existing, evolving, and projected conflicts and tensions between identity – or, more precisely, identities – and differences that shape the dealings between self and the other within the relevant polity committed to constitutional rule and favourably disposed toward the aims of constitutionalism’.51 Unlike Schmitt’s notion of identity as homogeneity, which requires the people’s sameness, democratic constitutions not only presuppose, but even to a certain extent promote, a notion of people’s identity in the sense of selfhood. Their conception of time should be connected at this respect with the recognition of social, political, and religious pluralism, whose intrinsic dynamic both structures and enhances changes of opinions, habits, and beliefs within the people over time. The scope of the Constitution’s integrative function should be considered coextensive with that dynamic, provided that ‘difference as a structural principle of democracy requires consensus about fundamental values and procedures. Where fundamental consensus is lacking, difference turns into violence and destruction’.52 The Constitution’s stability is thus believed to depend on the flexibility of its formulation, as well as occurring with the balance between majoritarian democracy and the rule of law. A partially different perspective emerges from the opinion that democratic politics depends on the invocation of a ‘We’ whose boundaries ‘are not drawn once and for all, its identity is never fixed, the self of self-legislation remains to be formed by and in the legislation it gives itself. The legal institutionalisation of the sensitivity for this dialectic can be found in constitutional democracy’s insistence on both majority rule and rights of minorities’. The latter, in particular, provides minorities with ‘the opportunity to defer any fixation of the identity of the people’.53 A collective self as identified through diversities emerging among the people should not be confused with a collective self as identified with those diversities. The former hypothesis presupposes self-reflexivity, which is possible as far as a distinct self can ultimately be distinguished from all the other selves. This possibility, as already mentioned, is ensured from a common adherence to the Constitution’s fundamental values, not just to its procedures. The hypothesis of a collective self as merely identified with diversities denies the possibility of self-reflection. It results from post-modernist accounts of pluralism as a never-ending flux of different experiences, contrary to a contemporary constitutionalism depicted as intrinsically embedded in the statist tradition.54 Such accounts 51 ibid 761. 52 A von Brünneck, ‘Comment: Difference and Democracy from the Constitutional Law Perspective’ in K  Rabe and A Sattler (eds), Difference and Democracy. Exploring Potentials in Europe and Beyond (Campus, 2011) 80. 53 L Corrias, ‘Populism in a Constitutional Key: Constituent Power, Popular Sovereignty and Constitutional Identity’ (2016) 12 EuConst 24. 54 See N Krisch, Beyond Constitutionalism. The Pluralist Structure of Postnational Law (OUP, 2010) and J Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (CUP, 1995).

The Double Fiction of the People  149 are at best inaccurate, neglecting the clear distance separating that constitutionalism from the monistic structure affecting the traditional state on the European continent. Hence derives a ‘false opposition’ that impedes an understanding of ‘the subject(s) of both the plurality of legal norms at stake and the plurality of corresponding constitutional constraints. It is not a matter of choosing the one over the many or vice versa, but of explaining who the many are and how they ought to relate in the absence of ultimate authority of the constituted orders’.55 VIII.  THE ROLE OF HABITS IN ENSURING CONSTITUTIONAL LEGITIMACY

The Constitution’s relationship with the people is differently suggested by András Sajó. For him, constitutions ‘single out and privilege moral concerns and values and turn them into habits: a rule or a principle will be respected and emotionally endorsed as convention, without raising the issue of moral appropriateness’.56 He makes dependent people’s acquiescence on a strong status quo bias: the world is believed to be just, and any given arrangement that does not make one’s life chances worse off is fundamentally acceptable, irrespective of the nature of the arrangement. What really matters (even for a Rousseauist theory) is that the public sentiment emotionally echoes what is expressed in the constitution and some fundamental laws, and thus authorship is not a must. Moreover, over time, people are born into the constitutional culture. They will find the constitutional arrangement as granted and given, a kind of “natural order” without which order cannot exist for everyday life, even if increasing multiculturalism challenges these assumptions.57

Habits do work for ensuring law’s efficacy in general. However, do they suffice for ensuring as well the legitimacy of principles and rules aimed at governing law, as those contained in the Constitution, or something else is needed? The question needs to be posed further, since the assumption that people acquiesce to a kind of ‘natural order’, corresponding to ‘moral concerns and values’ which constitutions ‘single out and privilege’, is referred to constitutions, be it democratic or autocratic. In such an account, the Constitution’s open texture, which is typical of the former, ‘may accommodate new, emotionally shaped cognitive frames which enable emerging intuitions to prevail’,58 but does not seem to play a role in maintaining the Constitution’s legitimacy. Nor does recognition of pluralism, whose function should consist in paving the way to different habits, thus constantly putting into question the idea of a ‘natural order’. Significantly, while giving great importance to habits, Tocqueville observed that democracy motivates citizens to obey the law, ‘for as the minority may shortly rally the majority to its principles, it is interested in professing that respect for the decrees of the legislator which it may soon have occasion to claim for its own. However irksome an enactment may be, the citizen of the United States complies with it,

55 S

Besson, ‘The Truth about Legal Pluralism’ (2012) 8 EuConst 358–59, reviewing Krisch (n 54). Sajó, Constitutional Sentiments (Yale University Press, 2011) 114. 57 ibid. 58 ibid 76, making the example of stem cell research. 56 A

150  Cesare Pinelli not only because it is the work of the majority, but because it originates in his own authority, and he regards it as a contract to which he is himself a party’.59 A law, he added, ‘is observed because it is a self-imposed evil in the first place, and an evil of transient duration in the second’.60 The opinion that for the founding fathers ‘the greatest menace to freedom is an inert people; that public discussion is a duty; and that this should be a fundamental principle of American government’61 might even appear an ‘attractive tale’.62 It is exactly an inert or conformist people though that is evoked from the assumption that what ultimately counts for ensuring a democratic constitution’s legitimacy is popular acquiescence to a ‘natural order’. Sajó notes however that ‘The construction of public sentiments is never-ending, and there is no guarantee that the individual liberty-enhancing arrangement cherished in constitutional sentiments will not be replaced by a communitarian system of a sort where love or hatred, inclusion or exclusion will be the norm, where duties are not bound by rights and self-determination, and choices are replaced by an allencompassing welfarism of do-good.’63 The hypothesis sheds light on the following events as the people’s tendency to privilege securitarian measures against the ‘others’, or neglect of self-determination. While using the category of public sentiments, these reveal a dominance of fear, irrespective of whether it has been provoked, or at least fuelled, by populist parties. Which constitutional consequences have at any rate been followed? IX.  THE WANING OF A LONG-SIGHTED PERSPECTIVE OF POLITICS

The abovementioned constitutional retrogression reflects inter alia a quest for securitarian measures, but constitutional texts are generally spared from being revised. Even the 2011 Hungarian Constitution, the sole one to be enacted under a populist regime in Europe, pays lip service to the ECHR, although thus contradicting the ethno-nationalist version of identity which it foreshadows.64 Populist regimes, we have seen, circumvent, rather than abolish, the rule of law, and exhibit a formal acceptance of the representation principle. These elements put into question the current assumption that makes dependent the Constitution’s legitimacy on the people’s adherence to a set of values as translated into constitutional principles, which only the emergence of alternative values among the people could deny. It is as if popular commitment to constitutional democracy could vanish without being substituted with the belief in alternative values. 59 A de Tocqueville, Democracy in America (1840) (The Pennsylvania State University, 2002) 275. 60 ibid 276. On this see S Holmes, ‘Tocqueville and democracy’ in D Copp, J Hampton and JH Roemer (eds), The Idea of Democracy (CUP, 1993) 29 ff. 61 Whitney v California, 274 U.S. 357, 375 (1927) (Justice Brandeis concurring). 62 Sajó (n 56) 127. 63 ibid 86. 64 See inter alia ALPap, ‘Who Are “We the People”? Biases and Preferences in the Hungarian Fundamental Law’ in Z Szente, F Mandák and Z Fejes (eds), Challenges and Pitfalls in the Recent Hungarian Constitutional Development. Discussing the New Fundamental Law of Hungary (L’Harmattan, 2015) 55 ff.

The Double Fiction of the People  151 The hypothesis requires further exploration. Long-term changes deserve attention in this respect, such as the crisis of representative democracy and the advent of a new communicative system. The former is itself a multi-faceted issue, including distrust for democratic politics, the crisis of the political accountability mechanism, and the emergence of a new criticism of the representation principle. These phenomena are hugely discussed in current literature, although not always with the awareness that the crisis of democratic politics was similarly caught decades ago. In particular, Otto Kircheimer’s well-known formula of the ‘catch-all party’65 reflected a broader picture comprehending reduction of politics already to individual personalities, the waning of political opposition, disconnection of party leaders from the mass population and depoliticisation of the latter.66 Even the crisis of parliament as the archetypical democratically legitimised institution was certified some time ago: ‘During the rise of constitutional government since the eighteenth century, much has been placed in the ability of democratically elected parliaments to deliver a form of government that meets the high hopes placed in them. Today, there is a wide consensus that these hopes have not been sufficiently fulfilled. There is a commonly held notion that parliaments are too weak, that they lack constitutional authority or that the heyday of parliamentary control is behind us.’67 According to these accounts, the crisis of representative democracy not only persists, but it can also be interpreted as creating the premises for changing popular perception of common values, to the extent that these require a temporal perspective. The point is that representative democracy encapsulates a specific notion of time. Citizen-voters choose their own representatives for a mandate usually lasting five years, without being entitled to recall them in the meantime, but having the chance of evaluating their conduct through the ballot box at the next election. Citizen-voters are thus, in principle, able to hold representatives, and decision-makers more generally, to account. The whole cycle of representative democracy and political life is intended to realise the principle of political accountability. The rule that electors are prevented from recalling their chosen representatives during the five-year mandate is therefore not to be seen simply as a limitation, but also as an opportunity for evaluating how representatives have converted their own interpretation of the electors’ interests into concrete policies. Party failings, reduction of politics to individual personalities, and, on the other hand, increasing complexity of government, do play a role in putting such a mechanism at risk. Furthermore, most citizens judge politicians from afar and experience politics as spectators, and combine ‘a substantial level of cynicism about politics with occasional outbursts of moral indignation as to its failings and frustrations’.68 65 O Kircheimer, ‘The Transformation of Western European Party Systems’ in J LaPalombara and M Weiner (eds), Political Parties and Political Development (Princeton University Press, 1966) 177–200. 66 A Krouwel, ‘Otto Kircheimer and the Catch-All Party’ (2003) West European Politics 31 ff. 67 AW Bradley, KS Ziegler and D Baranger, Constitutionalism and the Role of Parliaments (Hart, 2007) 1. 68 C Hay, G Stoker and A Williamson, Revitalising politics: have we lost the plot? (Hansard Society, 5–6 November 2008) 16.

152  Cesare Pinelli What annihilates political accountability is, however, the fact that public debates are disconnected from a reasoned confrontation between programmes or policies concerning the future of the country, and needing time to take shape and then to be evaluated by the voters. Those debates are today structured in terms of individual events, and through a series of fleeting media-driven perceptions.69 Unsurprisingly, representatives tend to construct a successful image before the electors, irrespective of what it means in political terms. Relieved from the burden of being evaluated according to their policies, and instead obsessed with daily opinion polls, they concentrate on instantiating the electors’ current preferences, rather than their interests over the life of a legislature.70 The good reasons for a long-sighted perspective of politics are thus denied,71 with the effect that the crisis of political representation differs radically from those that periodically characterised its bicentennial life. As it has been noted, [t]he question has always been posed in terms not of why, but of who and how? Whom shall we entrust to represent us? How do we ensure that they remain true to their mission? How do we protect ourselves from those who lead or govern? This has for two hundred years or so been the stock in trade of thinking about politics […] But what is becoming clearer is that the growing alienation from representative practices and processes is moving us beyond the ‘who’ and ‘how’ questions towards the ‘why’.72

The emergence of the ‘why question’ challenges definitively the twofold idea that political representation requires a distance between the representative and the represented, and that it consists in a partial, and therefore political, interpretation of the will of the people, that needs to be confronted in parliament with further political interpretations. Significantly, the rise of populism corresponds to the emergence of the ‘why question’ among the electors. While traditional parties adapt themselves to the media-driven scenario of politics, populists claim to mirror the people’s will, as if they were per se alien to give an interpretation of it. What populists deny is ‘any kind of pluralism or social division: in the populist imagination there is only the people on the one hand and, on the other hand, the illegitimate intruders into our politics’.73 Accordingly, they abhor political debates: their truth must directly reach the electors eventually, after having attacked the morality of their adversaries, but not through discussion with them. Justice Holmes’s metaphor of a ‘free marketplace of ideas’ from which truth would emerge appears here to be a relic of the past. X.  THE NEW COMMUNICATIVE SYSTEM AND ‘THE ETERNAL PRESENT’

Unlike a mediated form of politics, which deprived a populist leader of the means to make the people identify with him, in the age of social media ‘politicians find 69 But see already JM Guéhenno, La fin de la démocratie (Flammarion, 1993). 70 Y Mény and Y Surel, Par le peuple, pour le peuple (Fayard, 2000) 75 ff. 71 G Hermet, Les populismes dans le monde. Une histoire sociologique. XIXe-XXe siècle (Fayard, 2001) 50. 72 S Tormey, The End of Representative Politics (Polity, 2015) 58. 73 J-W Müller, ‘“The people must be extracted from within the people”: Reflections on Populism’ (2014) Constellations 11, 13.

The Double Fiction of the People  153 the missing direct link with the people through the Internet’, where they can bond together by a simple finger touch, and politics is ‘more or less demystified and become transparent’.74 Online decision-making processes, it might be added, are for the moment provided with scarce democratic credentials, thus posing further the question of how can ‘the function of democratic learning embedded in the multistage process of constitutional governance’ deal with ‘the pervasive simultaneity of political communications’, with the following ‘instantaneous decision-making style, displacing the stepwise and deliberative political tempo that is critical to norm translation and internalization in constitutional governance’.75 Populists are thus provided with unknown opportunities for imposing their style of politics as well as for shaping the political agenda. Hence a competitive advantage, that should be added to the already mentioned asymmetry between respect for pluralism characterising constitutional democracies, and the tendency of populist governments to obstruct plurality of voices, projects, and memories. The impact of the new communicative system on democracy goes, however, far beyond the populist rise. A century ago, Schmitt predicted ‘that one day through ingenious discoveries, every single person, without leaving his apartment, could continuously express his opinions on political questions through an apparatus and that all these opinions would automatically be registered by a central office, where one would only need to read them off. That would not be an especially intensive democracy, but it would provide a proof of the fact that the state and the public were fully privatized’.76 Opinions on political questions flow today continuously on the web and social media, which shape public opinion to an extent going far beyond Schmitt’s ingenious prediction. First and foremost, individual political opinions and further individual data are at the disposal of ‘giant firms’ that are reputed to be ‘so dominant in their markets and so close to governments that they break most of the rules of what economists understand by the free market’.77 The advent of the new communicative system, no less than the global financial market, engenders a dramatic shift in the realm of power from democratically elected authorities to private companies, which attempts of regulation appear for the moment inadequate to deal with. It has been observed that ‘While worrying incessantly about the menace of populism, elitist liberal democrats don’t see large concentrations of private power in the hands, for example, of Big Tech (Google, Facebook) or Big Finance as threats to freedom, or as narrowing or even manipulating human choices.’78 Shouldn’t the remark involve though populist governments as well, or are these prone to contrast large concentrations of private power in the people’s name? Global corporations have little to be worried about regarding both the reciprocally fierce adversaries of the moment. It is those committed to constitutional democracy’s principles that should be worried about unchecked global powers, and gather their efforts for finding measures aimed at limiting the latter. 74 M-SKuo, ‘Against instantaneous democracy’ (2019) 17 I•CON 560. 75 ibid 564 and 567 respectively. 76 Schmitt (n 4) 274. 77 C Crouch, The Strange Non-Death of Neo-Liberism (Polity, 2011) 75. 78 R Howse, ‘Epilogue: in defense of disruptive democracy – A critique of anti-populism’ (2019) I•CON 649.

154  Cesare Pinelli The new communicative system conforms meanwhile common imagination to immediate concerns or impulses, contracting both the sense of the past and that of the future. It should be recalled that ‘Our freedom is temporally extended. A people must have law from the past, and it must project law into the future, to be self-governing. We can achieve liberty only by engaging ourselves in a project of self-government that spans time.’79 The so called ‘eternal present’ is thus likely to annihilate freedom, through which value-ridden dimensions of human experience can be both perceived and mutually exchanged. A further symptom of the increasing irrelevance of values among the people should thus be added to the emergence of the ‘why should we be represented?’ question. Here lies the kernel of democracy’s malaise, that has to do with a deep transformation affecting cognitive learning processes, and therefore the whole dimension of our living together. A cognitive challenge is thus posed to constitutionalism. How could it be apprehended is a question that goes beyond the purposes of this contribution. What should at any rate be taken into account is that ‘By continuing to attribute to persons, interests, powers or systems the agency and responsibility of crises [….], there can be no entry into the new dimension of intelligibility and non-intelligibility imposed by the irruption of the “world” at the boundaries of social communication and its non-mediated contact with it.’80 XI.  IS THE DOUBLE FICTION OF THE PEOPLE REAPPEARING?

The hypothesis of a popular remoteness from values questions the assumption relating the Constitution’s legitimacy to the presumption of peoples’ adhesion to constitutionally embedded values. At the same time, current developments show that the Constitution’s normative function can formally survive the extinction of the integrative. Democracy’s malaise exonerates populists from the burden of erecting a new building. They can just erode the substance of a democratic constitution’s principles, and exploit its rules and procedures until the sole vestige of free election remains of it. Do fictions play a role in such a process, and if so, which role do they play? At first sight, the populist claim of acting in the people’s name revives the Schmittian divide between friend and enemy, namely between ‘we the people’ and ‘the others’, that nurtures his idea of an authentic people contrasting the fiction of representation.81 On the other hand, under populist regimes, free elections are held in formal compliance with the representation principle and the majority rule. The double fiction of the people resulting from the Kelsen/Schmitt controversy, we have seen, amounted to an intractable dilemma between liberal democracy and totalitarianism. The populist claim of acting in the people’s name exhibits a pale resemblance to that supported by Schmitt. The imaginary homogeneous people 79 Rubenfeld (n 46) 177. 80 J Clam, ‘What is a Crisis?’ in PF Kjaer, G Teubner and A Febbrajo (eds), The Financial Crisis in Constitutional Perspective. The Dark Side of Functional Differentation (Hart, 2011) 215. 81 B Stanley, ‘The thin ideology of populism’ (2008) 13(1) Journal of Political Ideologies 103.

The Double Fiction of the People  155 as suggested by populists reflects their ‘thin ideology’,82 that mirrors the virtual world running parallel to the real in our time far better than the desiccated political legacies of their adversaries. Such world’s fictions clearly differ from that hidden behind previous appeals to the people’s will as well as from the artificial concepts of constitutionalism. In practice, populist appeals to the people can therefore coexist with a representation principle that has lost its ultimate function of ensuring competition between political views of the people’s interest. The same occurs with the majority rule, that no more presupposes, as in the Kelsenian account, respect for minorities, nor requires external control through rule of law mechanisms, and can thus be deceptively reduced to a winner-take-all rule. XII.  ELITE’S DETACHMENT FROM THE PEOPLE AND PEOPLE’S DETACHMENT FROM THE CONSTITUTION

A double fiction of the people is now envisageable. Compared to that ignited during the Weimar tragedy, it reflects a modest landscape, where both the populists’ substantialist claim of acting in the name of the people and their formal, and instrumental, tribute to democracy’s rules depend on, and at the same time fuel, a seemingly harmless disconnection of the real people from the Constitution. Some suggest instead an opposition between ‘populists’ and ‘anti-populists’, or ‘elitist liberal democrats’, as reflecting ‘radically different conceptions of how democracy should operate in the contemporary Western European political landscape – both valid, but very much at odds with one another’.83 Reference is made to the balance between the ‘democratic’ and the ‘liberal’ pillar of constitutional democracies, which each camp argues has been tipped too far in one or in the opposite direction.84 Such perspective is centred on the political conflict of the moment, and corresponds fairly to the dichotomy ‘people v elite’ which populists have imposed at the centre stage of the political and even of the academic debate. The issue is thus neglected of how the people’s attitude toward the Constitution has evolved in times of democratic malaise. The elite’s detachment from the people should appear prima facie less relevant, and worrying, than the risk of people’s detachment from the Constitution. While the latter is likely to be suggested, the hypothesis that it depends on a waning of long-sighted approaches, blurring as such whichever constitutional vision, needs further reflection, with the related question of how the cognitive challenge will be addressed that the communicative system poses to constitutional democracies.



82 ibid 83 B

106. Moffitt, ‘The Populism/Anti-Populism Divide in Western Europe’ (2018) 5(2) Democratic Theory 2. 9.

84 ibid

156

10 Stronger Together? Populist (and Non-Populist) Politics of Peoplehood JAN-WERNER MÜLLER*

D

oes every polity have a politics of the people? In one sense, yes. Every political unit needs some account of who belongs and who does not, or, put differently, which people are in this together and why. Of course, dayto-day politics rarely revolves around these fundamental questions, though it seems plausible to think that controversy around them has become more pronounced in recent years. The reasons usually cited are the increasing number of refugees and immigrants in a number of countries (countries, one should say, to which people who have the luxury of writing and speaking about theories of peoplehood would pay attention). Less obviously, there are anxieties about supposed demographic decline and the shifting ethnic composition of the demos due to differences in birth rates among various ethnic groups (both of which have fired the imagination of right-wing populists eager to stoke fears of a ‘great replacement’ of current populations).1 In any case, evidence concerning sentiments of ‘togetherness’ in today’s democracies can certainly sound alarming: for instance, 35 per cent of people in France say they have nothing in common with their fellow citizens; while a right-wing agitator like the late American talk radio host Rush Limbaugh exclaims on his nationally syndicated show: ‘I see more and more people asking what in the world do we have in common with the people who live in, say, New York?’2 For a long time, the Nation-State – and associated ideologies of ethnic or cultural nationalism – has been the default option for providing some sort of account of ‘who are the people’. But nationalism is now also regularly associated with what has widely been described as ‘the rise of populism’ around the globe. There’s no doubt that * Princeton University. This chapter partially draws on ideas first developed in my What is Populism? (Penguin, 2017) and Democracy Rules (Penguin, 2021) titles. I am grateful to Cas Mudde and Annie Stilz for comments on an earlier version of the latter parts of this text. 1 See for instance I Krastev, ‘The Fear of Shrinking Numbers’ (2020) 31 Journal of Democracy 66–74 and E Kaufmann, Whiteshift: Populism, Immigration, and the Future of White Majorities (Abrams Books, 2019). For important normative contributions to the debate: D Miller, Strangers in our Midst: The Political Philosophy of Immigration (Harvard University Press, 2016) and P Bou-Habib, ‘The Case for Replacement Migration’ (2019) 29 Journal of Political Philosophy 67–86. 2 J Fourquet, L’archipel français: Naissance d’une nation multiple et divisée (Paris, 2019).

158  Jan-Werner Müller populist leaders put basic questions of who truly belongs to the people into play. In the process, they engage in what I will call in this chapter a highly exclusionary form of identity politics.3 This populist strategy threatens fundamental features of the rule of law, equality before the law in particular. As I’ll explain further below, such threats are not an accidental by-product of the populist politics of peoplehood; rather, they are always part of the programme. In this chapter, I shall first propose an understanding of populism centred on the idea that populists claim uniquely to represent the ‘real’ or authentic people (as opposed to the conventional wisdom that anyone who dares to criticise elites is already a populist). I also explain why this notion of a monopoly of representing the people is so damaging to democracy and the rule of law. Subsequently, I point to some underlying reasons as to why populism might resonate so strongly in our era (without, I hope falling into the trap of thinking that there must be a single macrocause – globalisation, migration etc – that explains a phenomenon that can be found in many parts of the globe). I suggest that in a number of countries we might be witnessing what I’ll call a double secession from ordinary democratic politics and, ultimately, the social contract itself: a secession of those at the very top of society and those at the very bottom (the reasons behind the two secession are of course very different; moreover, these secessions often remain largely invisible). I then propose an alternative to a populist politics of peoplehood that neither collapses into cultural nationalism nor rejects the legitimacy of borders; it is based on norms, but it does not exclude the contestation of the precise shape of these norms within the rules of the democratic game (some have sometimes called such a position constitutional patriotism).4 I am not suggesting that such an account can magically defeat populist forces. But I insist that having answers to basic questions about belonging is an urgent desideratum for, broadly speaking, liberals, who, all too often, have not taken populism seriously as a normative proposition of sorts and thus lack an adequate normative response to populist challenges.5 I.  THE POPULIST POLITICS OF PEOPLEHOOD

It is frequently asserted that scholars and journalists (not to speak of politicians and ‘ordinary citizens’) simply can’t agree on what populism is. I would respectfully differ. Many social scientists and political theorists have in fact converged on what can broadly be called an ideational approach.6 They might differ on the extent to which populism should be classified as an ideology; but they do reject notions according to which populism is a matter of particular electoral support (as in: ‘only frightened 3 Which is not to say that all so-called identity politics is exclusionary, let alone detrimental for democracy. 4 Myself, for instance: Constitutional Patriotism (Princeton University Press, 2007). The original formulations were offered by Dolf Sternberger and Jürgen Habermas. 5 See also C Rovira Kaltwasser, ‘The Responses of Populism to Dahl’s Democratic Dilemmas’ (2014) 62 Political Studies 470–87. 6 C Mudde and C Rovira Kaltwasser, ‘Studying Populism in Comparative Perspective: Reflections on the Contemporary and Future Research Agenda’ (2018) 51 Comparative Political Studies 1667–93.

Stronger Together? Populist (and Non-Populist) Politics of Peoplehood  159 lower-middle class people vote for populists’); they also refuse the idea that populism is a question of quality – or, rather, lack thereof – when it comes to policy (that is, the still widespread view, especially among economists, that populists are characterised by having very simplistic understandings of the world or necessarily make irresponsible, or outright demagogic, election promises). It is misleading, then, to equate populism with ‘criticism of elites’ or ‘antiestablishment attitudes’. While such an equation has become conventional wisdom, it is actually based on a rather peculiar thought. After all, any old civics textbook would instruct us that keeping an eye on the powerful is a sign of good democratic citizenship; yet nowadays we are told incessantly that precisely such a stance is populist (and, by implication, according to many observers, dangerous for democracy and the rule of law). Now, it is true that populists, when in opposition, criticise sitting governments (and, usually, also other parties). But, above all, they also do something else (and that’s crucial): in one way or another, they claim that they, and only they, represent what they often refer to as the ‘real people’ or also the ‘silent majority’. At first sight, this might not sound particularly nefarious; it does not immediately amount to, let’s say, racism or a fanatical hatred of the European Union, or, for that matter, a principled opposition to the notion of the rule of law. And yet this claim to a monopoly has two for liberal democracy (and particularly the rule of law and ideals of equal political inclusion) detrimental consequences. Rather obviously, populists then also assert that all other contenders for office are fundamentally illegitimate. This is never just a matter of disputes about policy, or even about values, which, after all, are completely normal and, ideally, even productive in a democratic polity.7 Rather, populists assert that their rivals are simply corrupt, fail to serve the interests of the people on account of their bad, or let’s say ‘crooked,’ character, etc etc. More insidiously, populists also claim that those who do not agree with their ultimately symbolic construction of the people (and hence usually do not support the populists politically) might not properly belong to the people in the first place. After all, the suggestion that there is a ‘real people’ implies that there are some who are not quite real – folks who just pretend to belong, who might actually undermine the polity in some form, or who at best are second-rate citizens.8 Such a message that only some truly belong to the people systematically undermines the standing of certain citizens. Obvious examples are minorities (whose standing might already be vulnerable for one reason or another) and recent immigrants who

7 Of course, we can debate what ‘productive’ (which has become a cliché in this context) really means. Two suggestions: conflicts can be clarified (an epistemic benefit) and be processed such that compromise becomes more plausible (a political benefit, as more citizens might identify with a legislative outcome); lastly, there is the well-known argument deriving from Machiavelli’s Discorsi that conflict – as long as groups recognise themselves as legitimate partners to a conflict – actually has an integrating function. See AO Hirschman, ‘Social Conflicts as Pillars of Democratic Market Society’ (1994) 22 Political Theory 203–18. 8 This symbolic message (which has very real consequences though) can usefully be compared to Sandra Day O’Connor’s endorsement test developed in Lynch v Donnelly: ‘Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.’ As so often, treating people as inferior and excluding them can then produce the very evidence which appears to prove that unequal treatment is justified.

160  Jan-Werner Müller are suspected of not being truly loyal to the polity. Think of Narendra Modi’s policy of creating a register of genuine citizens; ostensibly, this is about identifying illegal immigrants; but especially in combination with new refugee policies which effectively discriminate against Muslims, its actual message is abundantly clear to Hindu nationalists; the latter understand perfectly well that the package is meant to affirm the real, that is, Hindu people, and put fear into one particular minority, namely Muslims. In short, where populists come to power, one consequence of this exclusionary stance can also be that such citizens no longer enjoy full equality before the law (or even protection of the law at all):9 they are treated differently in conspicuous ways, perhaps not necessarily by judges in court, but in many ordinary encounters with bureaucrats who have understood perfectly well what is expected from the very top.10 That is not even to mention the unleashing of hate on streets and squares. There is significant evidence, for instance, that Trump rallies are associated with a local increase in assaults.11 The concept of ‘trickle-down aggression’ – coined by the philosopher Kate Manne – captures the dynamic well. Note how this exclusionary stance is not exactly the same as nationalism, if we understand the latter to mean that every cultural nation is entitled to its own state, and that the imperative of preserving the nation has independent moral weight.12 To be sure, all populists need to provide some content for their notion of ‘the people’; and it is hardly an accident that right-wing populists have so often reached for an ethnically defined understanding of the nation to do so (or opted for outright nativism). But, in principle, one can be a populist for whom the definition of the people is primarily political or ideological (think of Hugo Chávez’s notion of Bolivarian socialism for the twenty-first century); what matters in this case is that those who disagree with the supposedly uniquely authentic representative of the people are declared illegitimate and quite possibly put hors la loi. II.  WEAKER TOGETHER, STRONGER APART?

‘Brexit and Trump’ are commonly mentioned together to illustrate the rise, or sheer political power, of populism. One curious fact has rarely been remarked upon: the campaigns which supported Hillary Clinton and Remain had very similar-sounding slogans – which spectacularly failed to resonate with large parts of the electorate: ‘Stronger Together’ and ‘Stronger in Europe’. Evidently, a significant number of 9 Think of the violent Hindu nationalists tolerated (and sometimes clearly incited) by the Modi government in India. 10 For some examples of what Trump’s populism has meant on the ground, see D Matthews, ‘Donald Trump, the family separation crisis, and the triumph of cruelty’ (Vox, 19 June 2018), available at www.vox.com/2017/1/28/14425354/donald-trump-cruelty and S Harp, ‘I’m a Journalist but I Didn’t Fully Realize the Terrible Power of U.S. Border Officials Until They Violated My Rights and Privacy’ (The Intercept, 22 June 2019), available at https://theintercept.com/2019/06/22/cbp-border-searchesjournalists/ and AC Thompson, ‘Inside the Secret Border Patrol Facebook Group Where Agents Joke About Migrant Deaths and Post Sexist Memes’ Pro Publica, available at www.propublica.org/article/ secret-border-patrol-facebook-group-agents-joke-about-migrant-deaths-post-sexist-memes. 11 L Diamond, Ill Winds: Saving Democracy from Russian Rage, Chinese Ambition, and American Complacency (Penguin, 2019) 106. 12 D Miller, On Nationality (OUP, 1995).

Stronger Together? Populist (and Non-Populist) Politics of Peoplehood  161 citizens felt that they might be stronger, or in some other sense better off, by actually separating. I don’t want to make too much of this coincidence; slogans don’t decide outcomes. But I think it gives us a clue that what ‘together’ means today has been put profoundly into question. Just why are we in this together, many people might be asking, and what exactly do I have to do with the fate of these other people. Obviously we are not in this together because all our identities and interest fully align – if that were the case, we certainly would not need democracy, which, after all, offers an institutional machinery peacefully to process conflicts (primarily over interests, but, arguably, also about identities).13 And also not because we necessarily share one overarching substantive ideology – as sociological realists like Niklas Luhmann often pointed out sardonically, such pre-modern notions of all-encompassing social integration (or contemporary communitarian kitsch) hardly seem appropriate for modern, complex, and highly differentiated societies.14 And yet it can be argued that something has changed recently such that the question of the people is more in play than previously in the post-war era. I call this phenomenon the ‘double secession’. The first secession, to put it bluntly, is that of the most privileged. They are nowadays often lumped together under the category of ‘liberal cosmopolitan elites’, an invective thrown around by populist leaders, but also a term employed by a growing number of pundits and social scientists. This designation is somewhat misleading in at least two respects: first, while it is true that these elites are very mobile (at least potentially, if not always in fact), they are not necessarily cosmopolitan or liberal in any strong normative sense – if, by cosmopolitan we don’t mean folks with the highest frequent flyer status, but those committed to the idea that all humans stand in the same moral relation to each other (or, put simply, that, ultimately, borders have no real normative significance). While prominent members of various elites – including globally recognisable stars – make a show of international charity work, one would search in vain for advocates of what in political philosophy might possibly be called genuine global justice. And it is worth remembering that, in the 1990s and early 2000s, globalisation was also usually justified not with its globally beneficial effects, but with the benefits it would bestow on national constituencies (that in fact that it wasn’t a boon for everyone – that some won, and some lost – is another story). ‘Mobility’ is often more a matter of options, rather than a day-to-day reality. Sociologists have demonstrated that in many Western countries, economic and administrative elites still follow education and career paths that are distinctly national.15 At the same time – and this is crucial – they appear to be able to retreat from any real dependence on the rest of society (I say ‘appear’ because they of course still rely on police, half-way usable roads, etc). Not every one of them might literally live in a

13 A Przeworksi, Crises of Democracy (CUP, 2019). 14 For Durkheim, this would have been the mechanical solidarity based on fully shared norms, or ­solidarité par similitude. 15 For this argument about functional elites and their self-reproduction in national self-reproduction, see for instance Michael Hartmann’s work, such as Die Abgehobenen: Wie die Eliten die Demokratie gefähren (Campus, 2018).

162  Jan-Werner Müller gated community, but the underlying trends of ‘self-sorting’ and homogenisation of life-worlds are clear. After all, with a globalisation of supply chains, workers do not have to be in the same polity; with ‘free trade’ regimes, consumers do not have to be in the same polity; and, with the shift away from mass armies, one also does not depend on one’s fellow citizens to serve as soldiers.16 An openly avowed (though also quite cartoonish) version of this secession of the economically powerful is provided by Silicon Valley billionaire Peter Thiel. Thiel selfidentifies as libertarian (and ended up not only as an adviser to Donald Trump but as one of the figures trying to adorn Trumpism with actual ideas). In a programmatic statement, he writes that ‘in our time, the great task for libertarians is to find an escape from politics in all its forms – from the totalitarian and fundamentalist catastrophes to the unthinking demos that guides so-called “social democracy”’.17 He is putting his hope into ‘some sort of new and hitherto untried process that leads us to some undiscovered country’. Since, alas, there appear to be very few ‘undiscovered countries’, Thiel is betting on ‘cyberspace’, ‘outer space’, and ‘seasteading’ (as in ‘settling the oceans’). Thiel’s dismissive remarks about the demos provoked strong reactions – in particular, his sentence that ‘since 1920, the vast increase in welfare beneficiaries and the extension of the franchise to women – two constituencies that are notoriously tough for libertarians – have rendered the notion of “capitalist democracy” into an oxymoron’. He later clarified that he did not advocate disenfranchising citizens. Indeed, the whole point of his thinking was that the demos had to be written off as simply hopeless; the best one could do was to seek distance from it. This attitude may as well be called secession. It is often not nearly as visible (let alone justified with more or less philosophical-sounding techno-cliches as in Thiel’s case). But it is happening.18 The sordid reality that corresponds to Thiel’s pining for undiscovered countries are transnational accounting tricks with stateless entities. As two distinguished economists observe: … US firms have in 2016 … booked more than 20 % of their non-US profits in ‘stateless entities’ – shell companies that are incorporated nowhere, and nowhere taxed. In effect, they have found a way to make $ 100 billion in profits on what is essentially another planet.19

These kinds of secessions are not undertaken by actual ‘citizens of nowhere’ (nor does the money really end up nowhere); nor does any of this have anything to do with cultural cosmopolitanism, even if right-wing populist leaders, ever ready to wage culture wars, portray things that way. But the latter’s critique does contain a kernel of truth: some citizens in effect take themselves out of anything recognisable as a halfway decent social contract. To be sure, none of this is entirely new: the Abbé Sieyes, writing about French aristocrats, already observed that ‘the privileged actually come 16 Or, put differently, are seeing a decline in Durkheimian organic solidarity. I am grateful to Ivan Krastev for stimulating thoughts in this context. 17 See his ‘The Education of a Libertarian’ at www.cato-unbound.org/2009/04/13/peter-thiel/educationlibertarian. 18 See also P Osnos, ‘Doomsday Prep for the Super-Rich’ (The New Yorker, 30 January 2017). 19 E Saez and G Zucman, The Triumph of Injustice: How the Rich Dodge Taxes and How to Make Them Pay (Norton, 2019) 77–78.

Stronger Together? Populist (and Non-Populist) Politics of Peoplehood  163 to see themselves as another species of man’. They eventually discovered that they were not (just as much as some today will eventually discover that that there are no undiscovered countries). The other secession is less visible. It might appear to resemble the secessio plebis in the Roman Republic, when the plebs literally left the city, in effect organising a kind of general strike to bring about major political change. But, actually, it’s nothing like it. I refer to the fact that an increasing number of citizens at the lower end of the income spectrum (to put it very neutrally) no longer vote or in any recognisable form participate politically. Of course, I do not suggest that this de facto self-separation is based on a conscious programme in the way Thiel’s space (or spaced-out) fantasies are; there is no ‘undiscovered country’ for them; there’s only the land of deprivation and quiet despair, which can be as much inside people’s mind as it is on maps of what is sometimes euphemistically called ‘disadvantaged communities’.20 As is well known, such a largely invisible secession also becomes self-reinforcing: political parties, for the most part, have no reason to care for those who don’t care to vote; this in turn strengthens the impression of the poor (to the extent they can pay attention at all) that there’s nothing in it for them, when it comes to politics. The end result is declining and specifically also ever more distorted participation. Claus Offe sums up the logic at work: … as people are conditioned to ‘waste’ their rights and political resources, and as competing political elites and political parties come to understand that parts of the electorate are less likely than others to make use of their political resources, those elites will concentrate their platforms, campaigns and mobilization strategies upon those segments of the citizenry who actually ‘count’ and neglect others, launching a negative and exclusionary learning cycle of mutual alienation between elites and underprivileged citizens.21

How does all this relate to populism? Like all political parties, they offer what Pierre Bourdieu once called a ‘vision of divisions’, which is to say, they offer an interpretation of society’s major political fault lines – and then seek to mobilise citizens accordingly.

20 Wolfgang Merkel has coined the term ‘two-thirds society’ for this phenomenon – the bottom third has effectively disappeared from political life completely. See also B Teinturier, ‘Plus rien à faire, plus rien à foutre’: La vraie crise de la démocratie (Robert Laffont, 2017). For empirical evidence, see A Schäfer and H  Schwender, ‘“Don’t play if you can’t win”: does economic inequality undermine political equality?’ (2019) 11 European Political Science Review 395–413. They conclude starkly, ‘Moving from the most egalitarian to the most unequal countries depresses turnout – all else being equal – by 7 to 15 percentage points (depending on the exact model), which is comparable in magnitude to the effect of compulsory voting. Within Germany, where institutional variables do not differ, relatively deprived regions have significantly lower levels of turnout. Finally, we find that turnout declines for all income groups in unequal countries but particularly strongly for low-income groups. Our findings, therefore, unambiguously support the relative power approach – the rational abstention approach – that expects inequality to have a negative impact on political engagement. Our analyses show that in more unequal countries, fewer people turn out and vote. The idea that inequality mobilizes the poor to greater political activism because “more is at stake” clearly does not have any empirical grounding.’ 21 C Offe, ‘Participatory Inequality in the Austerity State: A Supply-Side Approach’ in A Schäfer and W Streeck (eds), Politics in the Age of Austerity (Polity, 2013) 196–218; here 203. Thomas Piketty adds that we should not assume that those who secede/abstain are by default racists; as Piketty puts is, ‘if the less advantaged truly supported anti-immigrant movements, their turnout should be at a peak today. The fact that it is very low clearly shows that many less advantaged voters are not satisfied with the choices presented to them’. Capital and Ideology, tr A Goldhammer (Harvard University Press, 2020) 754.

164  Jan-Werner Müller That is by no means in and of itself dangerous or somehow illegitimate. Democracy, after all, is about division, not abut consensus, or about what General Mattis, Donald Trump’s ill-fated Secretary of Defense called ‘fundamental friendliness’ (which, lamenting the lack of ‘political unity’ in his country, he was sorely missing in the second decade of the twenty-first century).22 The promise of democracy is not that we shall all agree, and it does not require that we must exhibit ‘uniformity of principles and habits’, as Alexander Hamilton had it; rather, it is the guarantee that we have a fair chance of fighting for our side politically and then can live with the outcome of the struggle, because we will have another chance in a future election (and the rule of law is of course crucial in containing conflicts). Hence it is not enough simply to complain that populists are divisive.23 Both right-wing and left-wing populists are not always wrong when they make claims that get at something like the secession of the powerful. But they are wrong to reduce all conflicts to questions of belonging or to deem disagreement with them as automatically illegitimate (those who disagree must be traitors). That is the reason why genuine left-wing populists (which is to say: actors who claim a monopoly of representing the people) are also prone to bend the rule of law; there is no reason to protect the rights of their opponents, once the latter have been deemed not to deserve a place in the political game at all.24 More particularly, right-wing populists (who, as said before, are for the most part committed nationalists today) effectively engage in a form of culture war centred not so much on ‘bringing people together’ but, rather, on conjuring up something like a secession of the supposedly ‘real people’. Yet, since the real people can hardly secede from their own homeland, the actual logic is one of expelling all those from the polity (at the very least symbolically) who do not truly belong to the people.25 In effect, these will hardly be the most powerful; rather, it is usually already vulnerable minorities who will be harassed and have their rights denied. In effect, populism of this kind often amounts to nothing else than a systematic defence of an ethno-state, with the twist that actual majorities feel like victims under attack, or at the very least form communities of shared outrage.26 Populism is not uniquely responsible for polarisation, but it is important to understand that, in one sense, its key strategy simply is polarisation. After all, it seeks to divide polities into homogeneous groups and then insinuates that some groups do not truly belong at all or are fundamentally illegitimate. Instead of being characterised by cross-cutting identities and interests, the political world is simplified and rendered as 22 D Filins, ‘James Mattis, a Warrior in Washington’ (The New Yorker, 29 May 2017). 23 Of course, non-populists are also often confronted with the accusation of ‘divisiveness’. The accusation – and the accompanying call for ‘civility’ – seems to aim at keeping certain conflicts out of the political game, rather than improving the rules of the game as such. 24 Think of the way the de facto ruler of Poland, Jarosław Kaczyński, charges an independent judiciary with ‘legal impossibilism’. 25 Though the notion that the real people might also need to retreat does exist: Austria’s right-wing populist party, the Freedom Party, owned a pretty small inn (Pension Enzian); there they hid gold with the argument that one day they might need a refuge, in case a European civil war broke out. I am grateful to Isolde Charim for mentioning this bizarre inner secession scenario to me. 26 Krastev (n 1) and C Fieschi, Populocracy: The Tyranny of Authenticity and the Rise of Populism (agenda, 2019) 162.

Stronger Together? Populist (and Non-Populist) Politics of Peoplehood  165 a picture of one central cleavage, quite possibly one that is of existential importance (along the lines of ‘if the wrong side wins, we shall perish’).27 Disquiet about what I called the double secession is channelled by right-wing populists into collective fear or even a basic moral panic that ‘the country is being taken away from us’ (when in fact both those at the top and those at the bottom are taking themselves out of the country – though, as I’ve by now said ad nauseam, for different reasons).28 Under such conditions of a perceived existential threat, citizens might be more willing to condone breaches of democratic principles and the rule of law (and it might be easier for politicians to portray judges as ‘enemies of the people’).29 Political groupings are brought together not by what John Stuart Mill called ‘common sympathies’, but by what political scientists refer to as ‘negative identity’ – opposition to political actors deemed traitors or disloyal minorities, rather than a shared political project.30 Populists seek to deepen a central division in society, simplify it into a matter of are-you-for-or-against-the-leader and thus raise the price their supporters have to pay for actually putting democracy and the rule of law above their partisan interests (as they perceive them in light of populist agitation).31 Let me add three further observations about populists in power. Evidently, they claim that victory at the ballot box translates into everyone having to accept now that they, and only they, represent the will of the people. Never mind that they often did not reach an actual majority (let alone a supermajority): the BJP, for instance, won a mere 37 per cent of the vote in the elections in India in 2019, but, as a result of the first-past-the-post system, received a majority in Parliament (a similar outcome can be observed in Poland in 2015, where the Law and Justice Party, on the basis of 37 per cent of the vote share (19 per cent of eligible voters) gained a majority in the Seijm and took this as a mandate to dismantle the rule of law). In Hungary, Viktor Orbán declared the 2010 election, in which his party received a majority of the votes and a super-majority in parliament, a ‘revolution the ballot box’ – construing a comprehensive mandate for constitutional as well as far-reaching social and political changes, even though a new Constitution had not been part of the election manifesto. Secondly, at least a number of right-wing populists have engaged in a strategy of what can only be called bait-and-switch. They initially present themselves as if they sought to reverse the double secessions, but in fact end up loosening constraints on economic elite activity further, while distracting the downtrodden with Kulturkampf

27 A nuanced account of such dynamics is provided in L Mason, Uncivil Agreement: How Politics Became Our Identity (University of Chicago Press, 2018). 28 The former chair of the right-wing populist Alternative for Germany once claimed that ‘we need the fearful to move majorities’. L Jacobsen, ‘Im Bund mit den Ängstlichen’ (Zeit online), available at www.zeit. de/politik/deutschland/2015-11/alternative-fuer-deutschland-parteitag-frauke-petry-hannover. 29 For a wonderfully succinct reminder as to why they are not: Geert Corstens, Understanding the Rule of Law, trans. Annette Mils (Hart, 2017). 30 I am grateful to Cristóbal Rovira Kaltwasser for pressing this point. There is not a significant literature on ‘negative partisanship’, especially in the US. 31 MW Svolik, ‘Polarization versus Democracy’ (2019) 30 Journal of Democracy 20–32. As Svolik puts it, ‘the political acumen of Chávez, Orbán, or Erdoğan lay in their ability to draw political battle lines along societal cleavages that were only simmering when these leaders were first elected. Once they succeeded, elections confronted their supporters with the choice between their partisan interests on the one hand and democratic principles on the other’.

166  Jan-Werner Müller (or further exclude them from politics altogether, through raising the barriers to political participation).32 Some, by encouraging critics of the Government to emigrate and by enfranchising co-ethnics residing abroad, even come close to bringing about the very homogeneous people in whose name they had always already been speaking (put differently, the populist ‘people’ becomes a self-fulfilling prophecy). Hungary is an obvious example of this; Orbán appears to have found a way to implement Bertolt Brecht’s ironic injunction in his poem The Solution that, if the people have disappointed the Government somehow, the Government should elect another people.33 III.  TOWARDS A NON-POPULIST ACCOUNT OF THE PEOPLE

Does all this mean that ‘people talk’ is inherently dangerous, perhaps somehow automatically illiberal, or even as such bound to be exclusionary? The answer is no. In fact, it would be peculiar if one sought to dispense with people talk in a democracy entirely. For instance, what would one think of a professional politician who, when asked about her vision of the people, could only reply that she had no idea, but could discuss some great technical fixes for the recent local sewage problems (or, like Dutch liberal Mark Rutte, answered that ‘vision is like an elephant that obstructs one’s sight’)? Politics as a profession includes the duty to have given some thought to what constitutes the people – there is nothing strange about that. What marks the difference between the populist and the non-populist politician, is that the former treats ‘the people’ as effectively a fallible proposition, a vision, or a hypothesis, so to speak, that can be disproven (at least temporarily) at the ballot box.34 By contrast, the populist politician not only always already knows the uniquely correct answer to the query ‘who are the people’ – they also treat that answer as if it were a given, indisputable fact. It is an assertion, in other words, that cannot truly be rejected at the ballot box; if it is, then there must have been fraud, corruption, etc. Thus, populists do not claim to form the will of the people, as, broadly speaking, democratic politicians would do; rather, they pretend that they are just finding it.35

32 Efforts at voter suppression by the Republican Party in the US are the most obvious example. Think of Paul Weyrich, one of the founders of the conservative movement avowing openly: ‘I don’t want everybody to vote. Elections are not won by a majority of people. As a matter of fact our leverage in the elections quite candidly goes up as the voting populace goes down.’ Quoted in A Lichtman, The Embattled Vote in America (Harvard University Press, 2018) 248. 33 Nach dem Aufstand des 17. Juni Ließ der Sekretär des Schriftstellerverbands In der Stalinallee Flugblätter verteilen Auf denen zu lesen war, daß das Volk Das Vertrauen der Regierung verscherzt habe Und es nur durch verdoppelte Arbeit zurückerobern könne. Wäre es da Nicht doch einfacher, die Regierung Löste das Volk auf und Wählte ein anderes? 34 To be sure, confirmation of a vision at the ballot box does not mean carte blanche – the implementation of a vision is constrained by leaving open the possibility of the present minority gaining office and re-shaping the conception of the people yet again. 35 The contrast between forming and finding was first suggested by Ernst Fraenkel. Note, for instance, Narendra Modi claiming: ‘I am merely the medium’ and ‘it is the people whose voice is resonating’. S Khilnani, ‘The idea of India says persuade not dictate’ (Times of India, 15 August 2017), at http:// timesofindia.indiatimes.com/india/the-idea-of-india-says-persuade-not-dictate/articleshow/60063019.cms. Carl Schmitt’s position is interestingly ambiguous here; witness his observation in Crisis of Parliamentary

Stronger Together? Populist (and Non-Populist) Politics of Peoplehood  167 Of course, this difference, significant as it is, does not exhaust the question of what makes for a non-populist conception of the people. As I said at the beginning, one ought to have such a conception, while bearing in mind that ‘peoplehood’ is only one aspect of democratic politics, and probably; and, in most circumstances, hardly the most important one. Debates around this issue have been caught between two extremes: on the one hand, the notion that a correct normative theory would dictate the shape of political boundaries; on the other, the view that, precisely because such theorising amounts ipso facto to an undemocratic imposition, one should leave the question of the people entirely to contestation (even quite an unruly one); from this angle, any criteria of togetherness look like an illegitimate way to cut off genuine democratic struggle over boundaries.36 Normative theorists would be right in saying that such a throwing up of one’s arms in the face of more or less democratic contestation leaves one speechless in the event of certain outcomes (for instance, populist politicians systematically disempowering or even disenfranchising minorities); while advocates of contestation no doubt have a point in casting doubt on the notion of a uniquely correct normative answer; an answer, that is, which would leave the demos with no other role than gratefully accepting the right plan handed down by political philosophers.37 Then again, they often implicitly assume that contestation means inclusion; and it’s unclear what they can say if it actually leads to a shrinking demos (or, put more bluntly, the de facto political exclusion of various minorities).38 Both answers, then, are unsatisfactory. Perhaps that’s because the question is badly posed. We’re not looking at a globe populated by humans and asking what would be the correct way of dividing them into discrete peoples; we’d be searching in vain for an Archimedean point from which to do this.39 I suggest we embark on a different route and, to do so, first take a wider view of the political landscape we are trying to traverse. What we are really interested in is not just ‘the people’ in the abstract, but the people as a democratic people. Of course, that’s presuming a lot. In particular, it presumes that a distinct group is committed to realising a way of life according to principles of equality and freedom; it presumes a collective will to share one another’s political fate, as John Rawls once put it.40 Furthermore – and Democracy: ‘The will of the people is of course always identical with the will of the people, whether a decision comes from the yes or no of millions of voting papers, or from a single individual who has the will of the people even without a ballot, or from the people acclaiming in some way. Everything depends on how the will of the people is formed.’ 36 The dilemma is nicely laid out in J White and L Ypi, ‘The Politics of Peoplehood’ (2015) Political Theory 439–65. 37 Note that, contrary to a common image of populists as unruly and norm-breaking, they in a certain way actually belong on the first side of the dilemma: the norm is that the people are those who the populists, as unique representatives of the people, say the people are. 38 It seems rather insufficient to say, where such exclusionary measures dominate, ‘they usefully alert us to the pressing need to promote counter-perspectives and act as a provocation to do so’. See White and Ypi (n 36) 456. 39 A Stilz, Territorial Sovereignty: A Philosophical Exploration (OUP, 2019). 40 As Josh Ober has pointed out, a group seeking the benefits of social cooperation without a master is rare, but hardly unknown; it’s not absurd to assume a group is seeking non-tyranny, though, as Ober concedes, it may well be that ‘things have happened in the past (good, bad, just unjust)’. See his Demopolis

168  Jan-Werner Müller presuming even more – a joint intention to live according to such principles has to translate into an imperative to maintain an institutional machinery – a state, for shorthand – which enforces such a joint commitment and which, ideally, is subject to the rule of law.41 One may well object that what needed to be proven has now just been presumed. But this very rough sketch of a democratic people does not prescribe a specific answer in the endless conflict over boundaries; it just limits possible contestation in three not so trivial ways: First, a distinctly democratic people cannot expel or disenfranchise citizens (that is, exclude them against their will); for such a measure would blatantly deny their status as free and equal members of the polity. Denying those who seek expulsion or disenfranchisement their wishes is not a violation of democratic principles or the rule of law, as such citizens fail to subscribe to the collective democratic project in the first place; less obviously, no particular effort to justify policies is owed to them, since they do not accept the shared framework of the polity at all.42 Denying the standing of other citizens is outside what we may as well call a hard border of democratic conflict. Secondly, in struggles over boundaries, one cannot simply assert a supposedly selfevident pre-political conception of the people. That is what defenders of a particular ethnic conception of the nation tend to do (who do not necessarily have to be populists assuming that the popular will just somehow needs to be revealed by the leader).43 The problem is not that a position which seeks to restrict immigration (or to coerce new arrivals to assimilate to a dominant culture) is as such outside democratic debate; at issue is not the substance of this view, but the way it is being asserted: it actually tries to put peoplehood beyond political conflict altogether by pretending that it is naturally given. As the legal theorist Christoph Möllers has pointed out, ‘where there is final certainty about the concept of the people, democracy has ended’.44 Thirdly: some hold that democracy requires the justification of all decisions which end up coercing others. Borders affect not just those inside them, but also subject those who are kept out by them; hence the latter must be part of the decision-making process.45 The conclusion is that, ultimately, from the point of view of a consistent democrat, the demos must be nothing less than global. The same conclusion appears to follow if one adopts a somewhat weaker criterion and argues that virtually all decisions in a democratic state – whether coercing others directly or not – have effects on (CUP, 2016) 37–8. In that sense, Carl Schmitt was not so wrong when he wrote that ‘democracy presupposes a people whose members are similar to one another and who have the will to political existence’. The problematic notion is obviously that of ‘similarity’, which proved expandable for Schmitt, up to the point of racial homogeneity. 41 Stilz (n 39) 98. 42 ibid and J Quong, ‘The Rights of Unreasonable Citizens’ (2004) 12 Journal of Political Philosophy 314–35. Quong argues persuasively that citizens who fundamentally reject the notion that the polity is composed of free and equal citizens are excluded from the constituency of justification; that does not mean that their basic rights have to be denied as such, though it can mean that their freedom to form parties has to be restricted. 43 F Wolkenstein, ‘Populism, liberal democracy and the ethics of peoplehood’ (2019) 18 European Journal of Political Theory 330–48. 44 C Möllers, Das Grundgesetz: Geschichte und Inhalt (CH Beck, 2019) 103. 45 A Abizadeh, ‘Democratic theory and border coercion: No right unilaterally to control your own borders’ (2008) 36 Political Theory 37–65.

Stronger Together? Populist (and Non-Populist) Politics of Peoplehood  169 non-citizens; and since all affected by a decision should have a say in it, we once more end up with a call for something like world democracy. A conventional response to this position is that one simply can’t conceive a political machinery that would allow a global demos to determine a collective will (let alone consistently implement universally binding decisions) – without turning into some kind of tyranny. Another would deny that giving a say to all affected by a decision is the correct take on democracy; after all, it is also not true that, within a polity, citizens not affected by a policy are officially excluded from debating and deciding. Yet another objection would emphasise that there are very different and yet legitimate ways of implementing the principles of freedom and equality; peoples disagree about the particulars even of basic political rights; everyone might have their own reasons for disagreeing, but these could all be perfectly good ones – grounded, for instance, in diverging historical experiences, diverging value commitments that touch on basic rights (but don’t uniquely determine them), diverging views of the empirical effects basic rights might have on different people, etc, etc. The ‘it’s gotta be global’ view achieves the opposite of what the defenders of an ethnic perspective want: it expands the people to the absolute maximum (and, to be consistent: aliens would also have to be included in debates over whether they could be excluded from Earth). But on one level the two apparent extremes have something in common: they stop a democratic conflict over peoplehood in its tracks; the size of the people is given; forms of togetherness are no longer enacted, evolving, fought over, and reshaped over time.46 These points do not translate into saying that borders should never be changed, or that any process at the end of which a demos has apparently shrunk is automatically illegitimate, or has to involve violations of the rule of law. Think of a permanently alienated cultural minority which cannot express itself because a dominant group instrumentalises the state to promote its own culture at the expense of all others; such a situation may be grounds for actual legal secession – which would leave a diminished demos behind (though even with separations and secessions among democratic peoples, there is no such thing as a right to expel). Questions of immigration and democratic citizenship will continue to be contested; the point is that there are many, but not infinite, ways of contesting them in polities committed to principles of equality and freedom, as well as the rule of law. What does ‘contestation’ mean concretely, then? In theory, single citizens can make a new beginning as to how we think about these questions; but the reality is that contestation is undertaken by groups – be it parties, trade unions, even media. As Judith Shklar once observed, in a piece tellingly entitled ‘Let Us Not Be Hypocritical’: ‘a people is not just a political entity, as was once hoped. Parties, organised campaigns, and leaders make up the reality’.47 That reality can look better or worse. Parties and 46 I am not suggesting a moral equivalence between the two views; there remains much to be said for a conception of peoplehood that, in light of a commitment to reciprocity, is sensitive to externalities. Wolkenstein mentions the campaign for Scottish independence as an example of actors who tried to justify their aims to both insiders and the most relevant outsiders (the rest of the UK, and the EU). See Wolkenstein (n 43) 343–44. 47 Quoted in A Przeworski, Democracy and the Limits of Self-Government (CUP, 2010) 27. This is really just another way of saying that a political people isn’t actually an ‘entity’ at all, but an ongoing pluralistic

170  Jan-Werner Müller media – the intermediary institutions considered crucial for making representative democracy function properly ever since the nineteenth century – structure conflicts, including conflicts about peoplehood. While a systematic reassessment of their role under twenty-first century circumstances is beyond the scope of this chapter, let me at least say that an important task for them is to respond to the double secession discussed further above. This also brings us back to the rule of law. The rule of law is indispensable in securing private autonomy. But it also maintains the conditions of public autonomy, that is, democratic debate, the formation of intermediary powers (based on rights to free speech and free association), and, ultimately, of course, free and fair elections; this, in turn, is crucial for the continuous enactment of peoplehood and its public justification.48 Hence, extending Möllers’ thought, one might say that those who seek to achieve final certainty about the people are also likely to be done with democracy and the rule of law. The latter, by making basic democratic rights such as freedom of speech and freedom of association robust, also enables re-opening the question of the people. This also means that the double secession is not best addressed by somehow constructing ‘majority cultural rights’, as some theorists have claimed.49 It is best tackled by, first, reaffirming joint intentions about core political principles (‘constitutional essentials’, in Rawls terminology), and, real mobilisation to keep the powerful in and to get the downtrodden back into the democratic game.50 For such efforts, basic democratic rights are essential; and they must be secured by an effective rule of law. This, finally, also underlines that a discussion of populism and peoplehood does not have to end with playing liberalism and the rule of law off against democracy.51 We need to have it all, so to speak.

process: J Habermas, ‘Constitutional Democracy: An Uncertain Union of Paradoxical Principles?’ (2001) 29 Political Theory 766–81. 48 J Habermas, Between Facts and Norms, tr William Rehg (MIT Press, 1996). Note what I am not saying: I am not asserting that basic political rights do not belong to democracy, but instead to the rule of law; rather, I am claiming that freedom of political speech and association belong to democracy, while an independent judiciary committed to equality before the law is essential in making these rights and protecting them. On this point, see also J Ober, Demopolis: Democracy Before Liberalism in Theory and Practice (CUP, 2017). 49 For instance, L Orgad, The Cultural Defense of Nations: A Liberal Theory of Majority Rights (OUP, 2015). It is telling that, in the end, Orgad himself actually defends ‘constitutional identity’ (which one might as well re-describe as constitutional patriotism) and no substantive account for a majority to use the state to protect, or promote, majority culture. 50 For concrete suggestions in this context (which apply in the US and beyond), see BI Page and M Gilens, Democracy in America? What Has Gone Wrong and What We Can Do about It (University of Chicago Press, 2017). 51 For an example of such a misguided conceptual and normative splitting, see Y Mounk, The People vs. Democracy (Harvard University Press, 2018); for crucial counter-arguments, see Ober (n 48).

11 Does Illiberal Democracy Exist? GÁBOR HALMAI*

Modern liberalism has become obsolete Vladimir Putin

I.  ILLIBERAL THEORIES

I

lliberalism can be understood as a critical reaction to liberalism. The subjects of illiberal criticism are both liberal theories and liberal societies. As Stephen Holmes argues, illiberals or anti-liberals are unwilling to examine liberal theories and liberal societies separately, because they assume that liberal societies perfectly embody liberal ideas, therefore the failing of liberal societies follows directly from the inadequacy of liberal principles.1 This chapter will discuss the current state of play of both illiberal theories and illiberal societies in East Central Europe. Illiberal critics of liberalism also portray and demonise liberalism as a single coherent phenomenon. However, conservative liberals have little in common with social democratic ones, nor neo-liberals with classical ones.2 As Ralf Dahrendorf has rightly pointed out, Friedrich von Hayek and Karl Popper may well both be seen as liberal thinkers, but their views are quite different from each other.3 While discussing illiberalism the focus of this chapter will be institutional. From this perspective the main object of illiberal critique is liberal democracy, which in my view is not merely a limit on the public power of the majority, but also presupposes rule of law, checks and balances, and guaranteed fundamental rights. This means that there is no democracy without liberalism, and there also cannot be liberal rights without democracy.4 In this respect, there is no such a thing as an ‘illiberal or

* Professor and Chair of Comparative Constitutional Law, European University Institute, Florence, Italy, [email protected]. 1 See S Holmes, The Anatomy of Antiliberalism (Harvard University Press, 1993) XIV. 2 See J Zielonka, Counter-Revolution (OUP, 2018) 20. 3 R Dahrendorf, Reflections on the Revolution in Europe (Times Books, 1990) 25–26. 4 cf J Habermas, ‘Über den internen Zusammenhang von Rechtsstaat und Demokratie’ in Zum Begriff der Verfassung. Die Ordnung der Politischen, ed, (U. Preuss, Fischer, 1994) 83–94. English version: J Habermas, ‘Rule of Law and Democracy’ (1995) 3 European Journal of Philosophy. Also Juan José Linz

172  Gábor Halmai anti-liberal democracy’.5 Those who perceive democracy as liberal by definition claim that illiberalism is inherently hostile to values associated with constitutionalism, as an institutional aspect of liberal democracy: separation of powers, constraints on the will of the majority, human rights, and protections for minorities. Therefore, the also oxymonoric ‘illiberal’ or ‘populist’ constitutionalism6 is necessarily authoritarian in character.7 Distinct from illiberal theories, the second part of the chapter discusses three main relations of illiberal societies: the social, the economic and the political. Among other things, I want to figure out whether the backsliding of liberalism in East-Central Europe is a proof or consequence of failure of liberal ideas. A.  Autocratic Leaders’ Rhetoric In a speech delivered on 26 July 2014, before an ethnic Hungarian audience in the neighbouring Romania, Prime Minister Viktor Orbán proclaimed his intention to turn Hungary into a state that ‘will undertake the odium of expressing that in character it is not of liberal nature’. He added: We have abandoned liberal methods and principles of organizing society, as well as the liberal way to look at the world. … Today, the stars of international analyses are Singapore, China, India, Turkey, Russia … and if we think back on what we did in the last four years, and what we are going to do in the following four years, then it really can be interpreted from this angle. We are … parting ways with Western European dogmas, making ourselves independent from them … If we look at civil organizations in Hungary, … we have to deal and Alfred Stepan assert that if governments, even being freely elected violate the right of i­ndividuals and minorities, their regimes are not democracies. See JJ Linz and A Stepan, ‘Toward Consolidated Democracies’ (1996) 7(2) Journal of Democracy 14, 15. Similarly, János Kis claims that there is no such thing as nonliberal democracy, or non-democratic liberalism. See J Kis, ‘Demokráciából autokráciába. A rendszertipológia és az átmenet dinamikája’ [From Democracy to Autocracy. The System-typology and the Dynamics of the Transition] (2019) 1 Politikatudományi Szemle 45–74. Those critics, which argue that liberalism as a 300-year-old concept predates liberal democracy, forget that not only democracy but also liberalism presupposes general and equal suffrage. 5 J-W Müller, ‘The Problem with “Illiberal Democracy”’ Project Syndicate (21 January 2016). 6 For instance, Paul Blokker considers ‘populist constitutionalism’ as an alternative, conservative understanding of constitutional order, which, among other things, is a reaction to injustices resulting from liberal democratic politics, to unbalanced emphasis on formalistic liberal institutions, rights, and norms, and an aggressive institutionalisation of a liberal understanding of law in the post-1989 transformation. See P Blokker, ‘Populist Constitutionalism’ in C de la Torre (ed), Routledge Handbook of Global Populism (Routledge, 2018); P Blokker, ‘Populism As a Constitutional Project’ (2019) 17(2) ICON. Using Isaiah Berlin’s terminology on ‘false populism’ I argue somewhere else that this ‘authoritarian populist constitutionalism’ is only a rhetoric, and not a real populist appeal to the ‘people’. See G Halmai, ‘Populism, Authoritarianism and Constitutionalism’ (2019) 20(3) German Law Journal. 7 Following Juan José Linz’s classical categories authoritarianism is in between democratic and totalitarian political systems. See JJ Linz, Totalitarian and Authoritarian Regimes (Lynne Rienner, 2000). Writing about Franco’s Spain, Linz has already outlined the following four main characteristics of authoritarianism: limited, not responsible political pluralism, without elaborate and guiding ideology, without political mobilisation, and with formally ill-defined, but quite predictable limits of power. See JJ Linz, ‘An Authoritarian Regime: the Case of Spain’ in E Allard and Y Littunen (eds), Cleavages, Ideologies and Party Systems (Helsinki, 1970). Regarding the constitutional markers of authoritarianism as a pretence of democracy, such as the lack of procedural rights, institutional guarantees and public discourse, see G Attila Tóth, ‘Constitutional Markers of Authoritarianism’ (2018) 11(2) Hague Journal on the Rule of Law.

Does Illiberal Democracy Exist?  173 with paid political activists here … [T]hey would like to exercise influence … on Hungarian public life. It is vital, therefore, that if we would like to reorganize our nation state instead of it being a liberal state, that we should make it clear, that these are not civilians … opposing us, but political activists attempting to promote foreign interests … This is about the ongoing reorganization of the Hungarian state. Contrary to the liberal state organization logic of the past twenty years, this is a state organization originating in national interests.8

Four years later at the same venue Orbán again expressed his support for illiberal democracy, adding that he considers Christian democracy as illiberal as well: There is an alternative to liberal democracy: it is called Christian democracy … Let us confidently declare that Christian democracy is not liberal. Liberal democracy is liberal, while Christian democracy is, by definition, not liberal: it is, if you like, illiberal.9

In June 2019, after Fidesz was suspended from the centre-right party family, EPP set up a special committee to examine the Fidesz party’s adherence to democratic standards. One of the questions the members of the committee, former Austrian Chancellor Wolfgang Schüssel, former European Council President Herman Van Rompuy and former European Parliament President Hans-Gert Pöttering addressed to Viktor Orbán was: ‘Please explain what you mean by the expression “illiberal state”?’ The Fidesz chairman and Hungarian Prime Minster’s response was: We are Christian democrats and we are differing nowadays at least in three aspects from the liberals: The first one is the conviction that family is fundamental, and family is based on one man and one woman. We believe that this needs to be protected, which the liberals deny. Secondly, while the cultural life of every country is diverse, a Leitculture, a cultural tradition is present everywhere. In Hungary this is Christian culture. We respect other cultures, but our own has a prominent role for us, and it is our responsibility to preserve it. Liberals refuse this concept. The third aspect is that liberal democrats are everywhere pro-immigration while we are against immigration. So whether one admits it or not: Christian democrats are illiberals by definition.10

In a conversation with the French philosopher, Bernard-Henry Lévy Orbán identified liberalism with totalitarianism, and illiberalism with true democracy: Liberalism gave rise to political correctness – that is, to a form of totalitarianism, which is the opposite of democracy. That’s why I believe that illiberalism restores true freedom, true democracy.11

In July 2019 in the yearly Băile Tușnad/Tusnádfürdő Free University camp Orbán admitted that ‘illiberalism’ carries a negative connotation, and therefore he changed the terminology calling illiberalism ‘Christian liberty’, which according to him is ‘a genuine model of a theory of state, a unique Christian democratic state’. He made it clear, however, that ‘Christian liberty does not mean individual liberty, because 8 See V Orbán, ‘Speech at Băile Tuşnad (Tusnádfürdő) of 26 July 2014’ Budapest Beacon (29 July 2014). 9 See Prime Minister Viktor Orbán’s Speech at the 28th Bálványos Summer Open University and Student Camp, 28 July 2018. Tusnádfürdő (Băile Tuşnad). 10 The leaked letter has been published by Politico at www.politico.eu/article/viktor-orban-rejects-eppconcerns-rule-of-law/. 11 B-H Lévy, ‘How an Anti-totalitarian Militant Discovered Ultranationalism. After 30 years, I spoke with Viktor Orbán again’ The Atlantic (13 May 2019).

174  Gábor Halmai individual freedoms can never encroach on the interests of the community. There is indeed a majority that must be respected, that is the foundation of democracy.’12 In a speech, delivered in mid-September 2019 at the 12th congress of the Association of Christian Intelligentsia he said that ‘Christian liberty’ is superior to the individual liberty – defined by John Stuart Mill in his On Liberty – which can only be infringed upon if the exercise of one’s liberty harms others. Christian liberty, by contrast, holds that we ought to treat others as we want to be treated.13 ‘The teachings of “Christian liberty”’ – he added – ‘maintain that the world is divided into nations’. As opposed to liberal liberty, which is based on individual accomplishments, the followers of ‘Christian liberty’ acknowledge only those accomplishments that also serve the common good. While liberals are convinced that liberal democracies will eventually join together to form a world government a la Immanuel Kant in the name of liberal internationalism, Christian liberty by contrast considers ‘nations to be as free and sovereign as individuals are, and therefore they cannot be forced under the laws of global governance’. In the system of ‘Christian liberty’ Hungary has a special place: We shouldn’t be afraid to declare that Hungary is a city built on a hill, which, as is well known, cannot be hidden. Let’s embrace this mission, let’s create for ourselves and show to the world what a true, deep, and superior life can be built on the ideal of Christian liberty. Perhaps this lifeline will be the one toward which the confused, lost, and misguided Europe will stretch its hand. Perhaps they will also see the beauty of man’s work serving his own good, the good of his country, and the glory of God.14

Another new element of the speech is where Orbán puts ‘Christian liberty’ at the centre of the ‘Christian democratic state’, ‘a new and authentic model of state and political theory’, which has been reached in the last 30 years by two big steps. The first has been the liberal democratic transition in 1989, while the second, more important one is the national or Christian regime change in 2010. Regarding the new constitutional order, introduced by the 2011 Fundamental Law of Hungary, Orbán admitted that his party did not aim to produce a liberal constitution. He said: In Europe the trend is for every constitution to be liberal, this is not one. Liberal constitutions are based on the freedom of the individual and subdue welfare and the

12 See www.miniszterelnok.hu/yes-to-democracy-no-to-liberalism/. As Yale law and history professor, Samuel Moyn pointed out President Trump had also begun to nudge the political culture in the same direction. He quoted Sohrab Ahmari, a conservative journalist, who approvingly explained Trump’s policy as re-ordering the common good and ultimately the Highest Good,’that is, the Christian God’ – Moyn argues. See S Moyn, ‘We Are in An Anti-Liberal Moment. Liberals Need Better Answers’ The Washington Post (21 June 2019). 13 See www.miniszterelnok.hu/orban-viktor-beszede-a-kereszteny-ertelmisegiek--szovetsegenek-kesz-xiikongresszusan/. This time the webpage of the Prime Minister, besides the original Hungarian text of the speech, contains no English, but only a German language translation: www.miniszterelnok.hu/viktororbans-rede-auf-dem-kongress-des-verbandes-der-christlichen-intellektuellen-kereszteny-ertelmisegiekszovetsege-kesz. 14 As Éva S Balogh points out this passage is taken from the Gospel of Matthew, (5:13-15), without identifying it. See ÉS Balogh, ‘Orbán, the New Jesus Delivers His Sermon on the Mount’ Hungarian Spectrum (15 September 2019).

Does Illiberal Democracy Exist?  175 interest of the community to this goal. When we created the constitution, we posed questions to the people. The first question was the following: what would you like; should the constitution regulate the rights of the individual and create other rules in accordance with this principle or should it create a balance between the rights and duties of the individual. According to my recollection more than 80% of the people responded by saying that they wanted to live in a world, where freedom existed, but where welfare and the interest of the community could not be neglected and that these need to be balanced in the constitution. I received an order and mandate for this. For this reason the Hungarian constitution is a constitution of balance, and not a side-leaning constitution, which is the fashion in Europe, as there are plenty of problems there.15

Orbán also refused separation of powers, checks and balances as concepts alien to his illiberal constitutional system: ‘Checks and balances is a U.S. invention that for some reason of intellectual mediocrity Europe decided to adopt and use in European politics’.16 B.  The Ideology of ‘Illiberal Democrats’ The ideological foundation of Orbán’s illiberalism can be found in the works of his two court ideologues, the sociologist and former liberal MP, Gyula Tellér and András Lánczi, a political scientist. It is easy to prove that Orbán in his 2014 speech on ‘illiberal democracy’ recited a study of Tellér published earlier on that year, that Orbán assigned as compulsory reading for all his ministers.17 Tellér claims that the ‘system of regime-change’ has failed because the liberal constitution did not commit the government to protect national interests, therefore the new ‘national system’ has to strengthen national sovereignty, and with it the freedom of degree of government activity. This, Tellér argues, is necessary against the moral command of the liberal rule of law regime, according to which ‘everything is allowed, what does not harm others’ liberty’. Lánczi’s anti-liberal concept can be found in his book Political Realism and Wisdom, which was published in English in 2015, as well as in an article published in 2018, after Fidesz’ third consecutive electoral victory.18 Lánczi’s critique is an outright rejection of liberalism as a utopian ideology, which is – similar to communism – incompatible with democracy. Similarly to Orbán, the at that time Prime Minister Beata Szydło (with Kaczyński, ruling from behind the scenes as he holds no official post), described the actions of the PiS Government dismantling the independence of the Constitutional Tribunal and

15 See ‘A Tavares jelentés egy baloldali akció’ (The Tavares report is a leftist action), Interview with PM Viktor Orbán in the Hungarian Public Radio, Kossuth Rádió, 5 July 2013. 16 Interview with Bloomberg News, 14 December 2014. 17 See G Tellér, ‘Született-e Orbán-rendszer 2010 és 2014 között?’ (Was an Orbán System Born between 2010 and 2014?) Nagyvilág (March 2014). 18 See A Lánczi, ‘The Renewed Social Contract–Hungary’s Elections’ 2018 IX(3) Hungarian Review. For a detailed analysis of Lánczi’s arguments see KL Scheppele, The Opportunism of Populists and the Defense of Constitutional Liberalism (2019) 20 German Law Journal 3.

176  Gábor Halmai the ordinary courts as a blitz to install an illiberal state. In mid-September 2016 at a conference in the Polish town of Krynica, Orbán and Kaczyński proclaimed a ‘cultural counter-revolution’ aimed at turning the European Union into an illiberal project. A week later at the Bratislava EU summit, the prime ministers of the Visegrád four countries demanded a structural change of the EU in favour of the nation states.19 Witold Waszczykowski, Poland’s minister of foreign affairs, expressing his own and his governing PiS party’s anti-liberalism went as far as to mock liberalism as ‘a world made up of cyclists and vegetarians, who only use renewable energy and fight all form of religion’.20 Ryszard Legutko, the main ideologue of PiS, similarly to his Hungarian counterpart, Lánczi, also likens liberal democracy with communism, both being fuelled by the ideas of modernisation and progress.21 Both Lánczi and Legutko assert together with other anti-liberals with one voice that liberalism and communism, or for that matter its ideology, Marxism are secretly allied and share a common ancestry that they are two offshoots of an Enlightenment tradition.22 Legutko also accuses liberalism’s aim to root out all forms of inequality, and asserts that human right, as legal norms that promote equality become ‘arbitrary claims, ideologically motivated, made by various political groups in blatant disregard of the common good’.23 This critique of liberalism goes back to the concept of Volksgemeinschaft (national community), or völkisches Recht, one of the core principles of National Socialist law, which can be characterised negatively by rejection of the individualistic, normative concept of the people (Volk) as the sum of nationals of the state, as presented in the 1918 Weimar Constitution.24 Volksgemeinschaft together with the Führerprinzip, the other main principle of National Socialist Weltanschauung aim to overcome individualism, hence it means strong anti-liberalism. Due to Carl Schmitt’s well-known flirts

19 Slawomir Sierakowski even speaks about an ‘illiberal international’. See S Sierakowski, ‘The Polish Threat to Europe’ Project Syndicate (19 January 2016). 20 ‘Haben die Polen einen Vogel’, Bild (3 January 2016). 21 See R Legutko, The Demon in Democracy: Totalitarian Temptations in Free Societies (Encounter Books, 2016) 2–9. 22 This anti-liberal political theory is present outside East-Central Europe as well. For instance Patrick Deneen’s book, Why Liberalism Failed (2018) is directed at the left in the US targeting both contemporary progressivism and ‘classical liberalism’ of conservatives. See also the Israeli political theorist Yoram Hazony, whose book The Virtue of Nationalism (2018) also criticises those conservatives who defend liberal democracy. As Marc Plattner convincingly argues, the common goal of all these thinkers is to conflate liberal democracy with contemporary progressivism and thus to suggest that conservatives should have no interest in supporting or defending liberal democracy. See M Plattner, ‘Illiberal Democracy and the Struggle on the Right’ (2019) 30(1) Journal of Democracy 16–17. 23 Legutko (n 21) 135. In a recent article, Paul Blokker characterises both Legutko and Lánczi as conservative intellectuals who have provided ideas for the conservative populist project, and important contributions to rethinking/re-imagining constitutional democracy in the contemporary European context. See P Blokker, ‘Populist Counter-Constitutionalism, Conservatism, and Legal Fundamentalism’ (2019) 15(3) European Constitutional Law. 24 Regarding the role of Volksgemeinschaft in National Socialist law, see O Lepsius, ‘The Problem of Perceptions of National Socialist Law or: Was There A Constitutional Theory of National Socialism?’ in C Joerges and NS Ghaleigh (eds), Draker Legacies of Law in Europe. The Shadow of National Socialism and Fascism over Europe and its Legal Traditions (Hart, 2003) 19–41.

Does Illiberal Democracy Exist?  177 with National Socialism it is not surprising that the critical stance of the new illiberals towards liberal constitutionalism is also related to a Schmittian understanding of the Constitution, and to his critique of liberal constitutionalism and its conception of the rule of law.25 The Constitution in Schmitt’s view is an expression of ‘the substantial homogeneity of the identity and the will of the people’, and guarantee of the state’s existence, and ultimately any constitutional arrangement is grounded in, or originates from, an arbitrary act of political power. The absolute authority of the political will of the people overrides all constitutional requirements, which according to Schmitt are signs of depoliticisation tendencies caused by liberal democracies. This is the reason that he elaborated on The concept of the Political26 (Das Politisches) based on the distinction between friend and enemy, which is precisely the opposite of liberal neutrality.27 In other words, in Schmitt’s view the basis of the Constitution is ‘a political decision concerning the type and form of its own being’, made by the people as a ‘political unity’, based on their own free will. This political ‘remains alongside and above the constitution’.28 Schmitt also portrays the people as an existential reality as opposed to the mere liberal representation of voters in Parliament, holding therefore that Mussolini was a genuine incarnation of democracy. Schmitt goes so far as to claim the incompatibility of liberalism and democracy, and argues that plebiscitary democracy29 based on the homogeneity of the nation is the only true form of democracy. But Schmitt is talking about these intermittent plebiscites as a tool to tap the resource of consent by the governed within a ‘qualitative’ and strong totalitarian state, the authority of which rests on the military and the bureaucracy, and which

25 As Heiner Bielefeld demonstrates Carl Schmitt systematically undermines the liberal principle of the rule of law. See H Bielefeld, ‘Deconstruction of the Rule of Law. Carl Schmitt’s Philosophy of the Political’ (1996) 82 Archiv für Rechts- und Sozialphilosophy 379–96. 26 C Schmitt, The Concept of the Political (University of Chicago Press, 2007). 27 See H Bielefeld, ‘Carl Schmitt’s Critique of Liberalism: Systematic Reconstruction and Countercriticism’ (1997) X(1) Canadian Journal of Law and Jurisprudence 67. 28 See C Schmitt, Constitutional Theory (Duke University Press, 2008) 125–26. This idea is also shared by a part of the French constitutional doctrine, influenced by Rousseau’s general will. This is the reason that the representatives of this doctrine hold that during a constitutional transition a referendum is sufficient to legitimate a new constitution. See the French Constitutional Council’s approval of De Gaulle’s 1962 amendment to the 1958 Constitution, ignoring the Constitution’s amendment provisions. 29 The Hungarian political scientist, András Körösényi, implementing the Weberian concept describes the Orbán regime as a ‘plebiscitary leader democracy’, where the activity of the leader (or Führer? – GH) is posteriorly approved by the people, but since this approval can be withdrawn this is still a democratic system. See A Körösényi, ‘Weber és az Orbán-rezsim: plebiszciter vezéremokrácia Magyarországon’ (Weber and the Orbán-regime: Plebisciter Leader Democracy in Hungary) (2017) 4 Politikatudományi Szemle 7–28. In a more recent interview however, Körösényi admitted that the for the withdrawal of approval currently a miracle is needed. See ‘Csak a csoda segít’ (Only the Miracle Helps), hvg, (20 June 2019). In contrast, Wojciech Sadurski using Guillermon O’Donnell’s ‘delegative democracy’ concept characterises the Polish system after 2015 as a ‘plebiscitary autocracy’, in which the electorate approves of governmental disregard of the constitution. See W Sadurski, Poland’s Constitutional Breakdown (OUP, 2019) 242–43. Similarly, Juan José Linz, to avoid confusion, proposes the addition of adjectives to ‘authoritarianism’ rather than to ‘democracy’ for such regimes: eg ‘electoral authoritarianism’. Also, Larry Diamond refers to ‘electoral authoritarianism’ in hybrid regimes. See L Diamond, ‘Thinking About Hybrid Regimes’ (2002) 13(2) Journal of Democracy 21, 24.

178  Gábor Halmai cannot accept the existence of political opposition.30 In other words the strong state cannot be liberal.31 As Mattias Kumm argues, Carl Schmitt’s interpretation of democracy, inspired by Rousseau, and used by authoritarian populist nationalists, like Viktor Orbán as ‘illiberal democracy’, becomes an anti-constitutional topos.32 Consequently, I equate constitutionalism with liberal democratic constitutionalism.33 This does not mean, however, that constitutions cannot be illiberal or authoritarian. Therefore, it is legitimate to talk about constitutions in authoritarian regimes, as Tom Ginsburg and Alberto Simpler do in their book,34 but I do not agree with the use of the term ‘authoritarian constitutionalism’35 or ‘constitutional authoritarianism’.36 Besides the

30 See C Schmitt, Legalität and Legitimität (Duncker & Humblot, 2012) n 51, at 93–94. Quoted by A Somek, ‘Authoritarian Constitutionalism: Austrian Constitutional Doctrine 1933–1938 and Its Legacy’ in C Joerges and NS Ghaleigh (eds), Darker Legacies of Law in Europe: The Shadow of National Socialism and Fascism over Europe and its Legal Traditions (Hart, 2003) 375. 31 Regarding the revival of Carl Schmitt in the Hungarian political and constitutional theory see A Antal, ‘The Rebirth of the Political – A Schmittian Moment in Hungary’ Transcript of the lecture given at the Constitutional systems in Middle Europe. The cycle of meetings about political ideas of Tadeusz Mazowiecki organised by Polska Fundacja im. Roberta Schumana on 6 November 2017, Warsaw. Also Z Balázs, ‘Political Theory in Hungary After the Regime Change’ (2014) 7(1) International Political Anthropology 5–26. 32 M Kumm, ‘Demokratie als verfassungsfeindlicher Topos’ Verfassungsblog (6 September 2017). 33 In contrast, others also regard other models of constitutionalism, in which the government, although committed to acting under a constitution, is not committed to pursuing liberal democratic values. See for instance M Tushnet, ‘Varieties of Constitutionalism’ (2016) 14(1) ICON. On 11 October 2019 Tushnet posted the following message to his Facebook page: ‘My lecture today was on “Varieties of Constitutionalism” and argued that a thin version of constitutionalism requires only (1) that there be some entrenched provisions, (2) that there be some mechanism for resolving disputes about what the law is that is oriented solely to making decision according to law, and (3) that the regime receive popular consent to the regime as a whole measured over some reasonable period of time. (Lots of complexities elided here.) The first subtext, which almost surfaced in the discussion afterwards, is that the Chinese leadership doesn’t really have to fear constitutionalism as such (as it seems to do), if the very thin version I outlined counts as constitutionalism (which I think it does). The second subtext is that, if the idea of thin constitutionalism were accepted the way would be open for discussions about whether thin constitutionalism should be thickened (discussions that are harder to have if the idea of constitutionalism is ruled off the table from the outset)’. Similarly, Gila Stopler defines the state of the current Israeli constitutional system as ‘semi-liberal constitutionalism’. cf G Stopler, ‘Constitutional Capture in Israel’ (2017) I•CON. 34 T Ginsburg and A Simpser, Constitutions in Authoritarian Regimes (CUP, 2014). 35 See for instance Somek (n 30); Turkuler Isiksel, ‘Between Text and Context: Turkey’s Tradition of Authoritarian Constitutionalism’ (2013) 11 Int’l J. Const. Law. 702; M Tushnet, ‘Authoritarian Constitutionalism’ (2015) 100 Cornell Law Review 391. Somek deals with Austria before the Anschluss, Isiksel with Turkey, while Tushnet tries to generally pluralise the normative understanding of nonliberal constitutionalism, differentiating between an absolutist, a mere rule-of-law, and an authoritarian form of constitutionalism, Singapore being the main example of the latter. Most of the chapters in H Alviar Garcia and G Frankenberg (eds), Authoritarian Constitutionalism. Comparative Analysis and Critique (Edward Elgar, 2019) – as the editors’ preface states, ‘challenge the notion of a single “proper sense” of constitutionalism that is coexistensive with and exhausted by the discrete elements of the liberal paradigm’. In the introductory chapter, Günter Frankenberg argues that ‘liberal orthodoxy treats authoritarian constitutionalism not just as a contested concept, but as a mere travesty or deceitful rendition of the rules and principles, values and institutions of what is innocently referred to as “Westerm constitutionalism”’. See G Frankenberg, ‘Authoritarian Constitutionalism: Coming to Terms with Modernity’s Nightmares’ in Garcia and Frankenberg (eds) (ibid) 7. 36 S Levitsky and LA Way, ‘The Rise of Competitive Authoritarianism’ (2002) 13 Journal of Democracy 51.

Does Illiberal Democracy Exist?  179 constitutions in the communist countries, both current theocratic and communitarian constitutions are considered as illiberal.37 Theocratic constitutions, in contrast to modern constitutionalism, reject secular authority.38 In communitarian constitutions, like the ones in South Korea, Singapore and Taiwan, the well-being of the nation, the community and society receive utilitarian priority rather than the individual freedom, which is the principle of liberalism. But in these illiberal polities, there is no constitutionalism, their constitutions – using Pablo Castillo-Ortiz’s term – are ‘de-normativised’.39 In other words, in my view ‘illiberal constitutionalism’ is an oxymoron. Besides illiberal constitutionalism there are also attempts to legitimate ‘nonliberal constitutionalism’ as a subtype of constitutionalism. Graham Walker uses the term for constitutionalist structures, ‘wherever people value some aspects of communal identity more than autonomy of individual choice’.40 Walker’s main example for the nonliberal, rather local than universal values is the multicultural grant of group rights to native peoples and the distinct society of Québec, but he also mentions the state of Israel, which fails its noncitizen residents in many regrettable ways, as well as the tribal life of the native American nations in the US. The common characteristic of all these approaches is ‘to indict the notion of individual autonomy rights as a form of naïve and homogenizing universalism, and to unmask the ethnic and moral “neutrality” of the liberal state as a covert form of coercion’.41 Walker builds up his concept using Charles Howard McIlwain’s understanding of constitutionalism in his 1940 book.42 According to McIlwain the limitation of government by law is not necessarily liberal, because the rights of individuals are not centralised, and there is no need for a public authority to be a neutral arbiter among competing value systems. Among the more contemporary thinkers, Walker relies on Stanley Fish’s scepticism about individual rights of all kinds. In his notorious articles from 198743 and 199244 respectively, Fish argues that because liberalism conceives its rational principles precisely as supranational and nonpartisan, ‘one can only conclude, and conclude nonparadoxically, that liberalism doesn’t exist’. According to Walker, nonliberal constitutionalism historically was anticipated in some features of Republican Rome or of medieval Europe, or in the millet system of the Ottoman Empire, while in more recent history in Canada before the 1982 Charter of Rights and Freedoms. He also considers the evolving multiculturalist/tolerationist American university campus practices as an

37 L-A Thio, ‘Constitutionalism in Illiberal Polities’, in M Rosenfeld and A Sajó (eds), Oxford Handbook of Comparative Constitutional Law (OUP, 2012) 133. Contrary to my understanding, Thio also talks about ‘constitutionalism’ in illiberal polities. 38 There are two subcategories distinguished here: The Iranian subcategory, where Islam is granted an authoritative central role within the bounds of a constitution; and the Saudi Arabian subcategory, where Islam is present, without the formal authority of modern constitutionalism. 39 See P Castillo-Ortiz, ‘The Illiberal Abuse of Constitutional Courts in Europe’ (2019) 15 European Constitutional Law Review 48–72 at 67. 40 G Walker, The Idea of Nonliberal Constitutionalism (1997) 39 Ethnicity and Group Rights 154–84 at 155. 41 ibid 157. 42 CH McIlwain, Constitutionalism, Ancient and Modern (Cornell University Press, 1940). 43 S Fish, ‘Liberalism Doesn’t Exist’ (1987) Duke Law Journal. 44 S Fish, ‘There’s No Such Thing as Free Speech and It’s a Good Thing, Too’ (1992) 17(1) Boston Review.

180  Gábor Halmai embryonic version of nonliberal constitutionalism, and ‘politically correct’ thinkers who promote such policies as hostile to the notion of ‘individual rights’.45 The problem with Walker’s concept is that he conflates constitutionalism with constitution. While the latter indeed predates the enlightenment, the former, together with liberalism, does not.46 The ‘constitution’ as the configuration of public order defined by Aristotle or Cicero did not require the notion of individual rights, while modern constitutionalism does.47 For instance Montesquieu in The Spirit of Laws argues that the constitutional system based on the separation of power is necessary for securing political liberty and preventing the emergence of ‘tyrannical laws’ and ‘execution of laws in a tyrannical manner’.48 This means that ‘fettered power’, which, according to Walker is the essence of constitutionalism, presupposes guaranteed individual rights. The same applies to definitions of constitutionalism, emphasising ‘limited government’. For instance Giovanni Sartori defines constitutionalism as ‘a fundamental law, or a fundamental set of principles, and a correlative institutional arrangement, which would restrict arbitrary power and ensure “limited government”’.49 Also, András Sajó and Renáta Uitz describe constitutionalism as a liberal political philosophy that is concerned with limiting government.50 But the main aim of limiting government is to guarantee individual rights. In other words, modern constitutionalism is by definition liberal. Not only the anti- or illiberal version, but also the nonliberal one is oxymonoric. II.  ILLIBERAL SOCIETIES

A.  Social Relations Historically, in the East-Central European countries, there were only some unexpected moments of quick flourishing of liberalism and liberal democracy followed

45 As we have seen earlier, Hungarian PM Viktor Orbán opposes ‘political correctness’ as a liberal concept. See his interview with Bernard-Henry Lévy in n 11. 46 ‘Classic liberalism’ in its 19th century European sense means individual liberty and free market. See A Sajó and R Uitz, The Constitution of Freedom: An Introduction to Legal Constitutionalism (OUP, 2017) 13. 47 Carl J Friedrich, one of the authors Walker refers to, in the later editions of his famous text on Constitutional Government and Democracy emphasises that the single function of constitutionalism is safeguarding each person in the exercise of ‘individual rights’. See CJ Friedrich, Constitutional Governance and Democracy: Theory and Practice in Europe and America, 4th edn (Blaisdell, 1968) 24, 7. Walter Murphy, another author, quoted by Walker after the democratic transition in Eastern Europe, has also talked about ‘protecting individual liberty’ as the ultimate civic purpose of constitutionalism. cf WF Murphy, ‘Constitutions, Constitutionalism and Democracy’ in D Greenberg, SN Katz, MB Oliviero and SD Wheatley (eds), Constitutionalism and Democracy: Transitions in the Contemporary World (OUP, 1993). 48 Montesquieu, The Spirit of the Laws, (transl and eds AM Cohler, BC Miller, HS Stone) (CUP, 1999) Book XI, Ch 6 at 157. (Quoted by Gábor Attila Tóth, ‘Constitutional Markers of Authoritarianism’ (2018) Hague Journal on the Rule of Law). 49 See G Sartori, ‘Constitutionalism: A Preliminary Discussion’ (1962) 56 The American Political Science Review 855. 50 Sajó and Uitz (n 46) 13.

Does Illiberal Democracy Exist?  181 by an equally quick delegitimisation of it. For instance shortly after 1945, till the communist parties took over, and also after 1989, when liberal democracy again seemed to be the ‘end of history’.51 Otherwise, in the national history of the Central and Eastern European countries, authoritarianism, such as the pre-1939 authoritarian Hungarian or Polish politics, played a much more important role in the transformation.52 Maybe the only exception was the independent Czechoslovakia established after World War I, led by its first President Tomáš Garrigue Masaryk.53 As mentioned earlier, modernisation is the main enemy of illiberal theory. As surveys on the links between modernisation and democracy show, the society’s historic and religious heritage leaves a lasting imprint.54 According to these surveys, the public of formerly agrarian societies, like many of the East Central European ones, emphasise religion, national pride, obedience, and respect for authority, while the public of industrial societies emphasise secularism, cosmopolitanism, autonomy, and rationality.55 Even modernisation’s changes are not irreversible: economic collapse can reverse them, as happened during the early 1990s in most former communist states. These findings were confirmed by another international comparative study conducted by researchers of Jacobs University in Bremen and published by the German Bertelsmann Foundation.56 According to the study, which examined 34 countries in the EU and the OECD, countries in East Central Europe have had a low level of social cohesion ever since the post-communist transformation, Hungary is ranked at 27th, between Poland and Slovakia. Social cohesion is defined as the special quality with which members of a community live and work together. Even though the transition to democracy in East Central Europe was driven by the fact that a large share of the population gave high priority to freedom itself, people expected the new states to produce speedy economic growth, with which the country could attain the living standards of West preferably overnight, without painful reforms. In other words, one can argue that the average people in these countries

51 See B Trencsényi, M Kopeček, L Gabrijelčič, M Falina, M Baár and M Janowski, A History of Modern Political Thought in East Central Europe: Volume II: Negotiating Modernity in the ‘Short Twentieth Century’ and Beyond, Part I: 1918–1968 (OUP, 2018). 52 See S Avineri, ‘Two Decades After the Fall: Between Utopian Hopes and the Burdens of History’ Dissent (30 September 2009). 53 When the preamble of the 1992 Czech Constitution incorporated the principle of a civic nation ‘in the spirit of the inviolable values of human dignity and freedom as the home of equal and free citizens’, it was a hint to Masaryk’s belief in the universal validity and critical power of democracy and liberty elaborated in his study on The Czech Question. See J Přibáň, The Defence of Constitutionalism. The Czech Question in Post-national Europe (University of Chicago Press, 2017) 115–16. 54 See R Inglehart and C Welzel, ‘Changing Mass Priorities: The Link between Modernization and Democracy’ (2010) 8(2) Perspectives on Politics 551–67. 55 ibid 553. This is one of the reasons for Czechia’s less religious society. Christian Welzel in his more recent book argues that fading existential pressures open people’s minds, making them prioritise freedom over security, autonomy over authority, diversity over uniformity and creativity over discipline, tolerance and solidarity over discrimination and hostility against out-groups. On the other hand, persistent existential pressures keep peoples’ minds closed, in which case they emphasise the opposite priorities. This is the utility ladder of freedom. C Welzel, Freedom Rising. Human Empowerment and the Quest for Emancipation (CUP, 2013). 56 D Schiefer, J van der Noll, J Delhey and K Boehnke, Cohesion Radar: Measuring Cohesiveness (Bertelsmann Foundation, 2013).

182  Gábor Halmai pursued the West in 1989–90, though not so much in terms of the Western political and constitutional system, but rather in terms of the living standards of the West. Claus Offe predicted the possible backsliding effect of the economic changes and decline in living standards, saying that this could undermine the legitimacy of democratic institutions and turn back the process of democratisation.57 This failure, together with the emergence of an economically and politically independent bourgeoisie, the accumulation of wealth by some former members of the communist nomenclature, unresolved issues in dealing with the communist past, the lack of retributive justice against perpetrators of grave human rights violations, a mild vetting procedure, and lack of restitution of the confiscated properties, were reasons for disappointment. Again, Czechia has been different both regarding the bourgeoisie and the harsher transitional justice measures. Trying to explain the attitudes of voters to support populist authoritarian pursuit of illiberal leaders, such as Orbán or Kaczyński, Ronald Inglehart and Pippa Norris suggest that it would be a mistake to attribute the rise of authoritarian populism directly to economic inequality alone, as psychological factors seem to play an even more important role. Older and less educated people tend to support populist parties and leaders that defend traditional cultural values and emphasise nationalistic and xenophobia appeals, rejecting outsiders, and upholding old-fashioned gender roles.58 Similarly, Will Wilkinson argues that urbanisation is a process that divides society in cultural values. While it creates thriving, multicultural, high-density areas where socially liberal values predominate, it also leaves behind rural areas and smaller urban centres that are increasingly uniform in terms of rather illiberal values.59 B.  Economic Relations Paradoxically, politically illiberal leaders, like Viktor Orbán of Hungary, use (neo) liberal economic policy to support their autocratic (constitutional) agenda.60 As many argue, referring to Karl Polányi’s influential book, The Great Repression, that the resistance to social democracy through authoritarianism in the name of economic liberalism prepared the ground for Fascism, and can lead to autocracy again.61 Other, mostly left-wing populists react to the unfulfilled promise of social-rights constitutionalism, based on TH Marshall’s concept of social rights being continuous to civil and political rights, which turned out to be a lie in most of East Central European countries’ constitutional practice.62 As Samuel Moyn argues, a commitment 57 cf C Offe, Designing Institutions for East European Transitions (Institut für Höhere Studies, 1994) 15. 58 R Inglehart and P Norris, Cultural Backlash, Trump, Brexit, and Authoritarian Populism (CUP, 2019). 59 W Wilkinson, The Density Divide: Urbanization, Polarization, and Populist Backlash (Research Paper of the Niskanen Center, June 2018). 60 This phenomenon is named by Michael Wilkinson as authoritarian liberalism. See MA Wilkinson, ‘Authoritarian Liberalism aa Authoritarian Constitutionalism’ in H Alviar and G Frankenberg (eds), Authoritarian Constitutionalism (Edward Elgar, 2019). 61 See Wilkinson, ibid, and also B Bugaric, ‘The Two Faces of Populism: Between Authoritarian and Democratic Populism’ (2019) 20(3) German Law Journal. 62 Andrew Arato and Jean Cohen, analysing the normative theory of left populist Ernesto Laclau and Chantal Mouffe respectively, go even further by claiming that left populism also cannot avoid the

Does Illiberal Democracy Exist?  183 to material equality disappeared, in its place market fundamentalism has emerged as the dominant force of national and global economics.63 The new illiberal system of ‘national cooperation’ in Hungary has left behind the vulnerable members of society, homeless people and refugees, and tries to diminish or cut the solidary actions of the members of the Hungarian society. In this respect Orbán’s right-wing authoritarian populism even differs from the policy of other right-wing populists, such as the French National Front or Austria’s Freedom Party, who – similarly to Orbán – mobilise their supporters with exclusion through immigration policy, but as opposed to the Hungarian PM, they often also emphasise inclusion through social rights and economic security.64 The packed Hungarian Constitutional Court rubberstamps the government’s neoliberal economic policy, changing its predecessor’s practice, which in the mid-1990s was willing to strike down austerity measures for the protection of social rights closely tying them to the protection of equal human dignity. Although social solidarity was an underdeveloped societal practice from the beginning of the democratic transition for several reasons, the at that time Constitutional Court strongly committed itself to the protection of human dignity and in this way guaranteed a higher profile for social (solidarity) rights, especially in the case of social care based on neediness. As a contrast, in the ‘non-solidary’ system of the Hungarian Fundamental Law of 2011 social security does not appear as a fundamental right, but merely as something the state ‘shall strive’ for, which is a step backward in comparison with the 1989 Constitution. Social insurance is not a constitutional institution any more, and the provisions of the Fundamental Law do not guarantee equal dignity and the former level of property protection. The recent case law of the Constitutional Court reaffirms the initial concerns, the dignity of social solidarity got lost in the illiberal backsliding of the past 10 years. C.  Political Relations The expansion of political illiberalism in East Central Europe through the introduction of a new illiberal constitutional regime went the furthest in Hungary and Poland. In the case of the former it was through a brand new constitution enacted in 2010, or through legislative changes that ignore the valid liberal constitution, as has been the case in Poland since 2015. Ironically, both countries are still members of the European Union, a value community based on the principles of liberal democracy. authoritarianism inherent in the strategy and logic of populism despite the inclusionary and ­democratising projects of the left movements it attaches to and despite the democratic socialist rhetoric of left populist leaders and their organic intellectuals. See A Arato, ‘Political Theology and Populism’ (2013) 80(1) Social Research and JL Cohen, ‘What’s Wrong with the Normative Theory (and the Actual Practice) of Left Populism?’ (2019) 26(3) Constellations. In my view it is certainly true for Latin American populists from Peron through Morales, Correa, till Chavez and Maduro, but not necessarily for European left populist parties, such as Podemes, Five Star and Syriza. The last two did not even show serious­ authoritarian pursuits while in power. 63 S Moyn, Not Enough. Human Rights in an Unequal World (Harvard University Press, 2018). 64 See A Weale, The Will of the People. A Modern Myth (Polity, 2018) 40–42.

184  Gábor Halmai i. Hungary In 2010 Orbán’s Fidesz party returned to power with the absolute majority of the votes, and due to the inherited disproportional election system that gained a twothird majority of the seats, which made it possible for them to enact a new, ‘illiberal’ constitution. This constitution, entitled the Fundamental Law of Hungary was passed by Parliament on 18 April 2011. The Fundamental Law breaks with a distinguishing feature of constitutions of rule-of-law states, namely, that they comprise the methods of exercising public authority and the limitations on such authority on the one hand and the guarantees of the enforcement of fundamental rights on the other. In December 2011 the Parliament enacted a controversial election law with its gerrymandered electoral districts, making the electoral system even more disproportional, by increasing the proportion of single-member constituency mandates, eliminating the second round, introducing a relative majority system instead of the absolute majority, and introducing ‘winner-compensation’, which favoured the governing party. With this rigged electoral system Fidesz both in 2014 and 2018 was able to renew its two-thirds majority with less than a majority of the popular vote. Beyond the change of the electoral law Fidesz made the playing field even more uneven by dismantling free media, and threatening civil society.65 On 11 March 2013, the Hungarian Parliament added the Fourth Amendment to the country’s 2011 constitution, re-enacting a number of controversial provisions that had been annulled by the Constitutional Court. The most alarming change concerning the Constitutional Court was the decision to annul all Court decisions prior to when the Fundamental Law entered into force. At one level, this would have made sense, but the Constitutional Court had already worked out a sensible new rule for the constitutional transition by deciding that in those cases where the language of the old and new constitutions was substantially the same, the opinions of the prior Court would still be valid and could still be applied. In cases in which the new constitution was substantially different from the old one, the previous decisions would no longer be used. Constitutional rights are key provisions that are the same in the old and new constitutions – which means that, practically speaking, the Fourth Amendment annuls primarily the cases that defined and protected constitutional rights and harmonised domestic rights protections to comply with European human rights law. With the removal of these fundamental Constitutional Court decisions, the government undermined legal security with respect to the protection of constitutional rights in Hungary. This regime is not merely illiberal, in not respecting human dignity, minorities’ and individual’s rights, the rule of law, and separation of power, but it is not democratic either, because the outcome of the elections are not uncertain anymore.66 It can be considered as a ‘pseudo-democracy’.67 65 Steven Levitsky and Lucan Way argued: ‘Clearly, Hungary is not a democracy. But understanding why requires a nuanced understanding of the line between democracy and autocracy … Orbán’s Hungary is a prime example of a competitive autocracy with an uneven playing field’. S Levitsky and L Way, ‘How autocrats can rig the game and damage democracy’ The Washington Post (4 January 2019). 66 The OSCE election observers were very critical of both the 2014 and 2018 elections, noting that ‘overlap between state and ruling party resources’, as well as opaque campaign finance, media bias, and ‘intimidating and xenophobic rhetoric’ also hampered voters’ ability to make informed choices. See www. osce.org/odihr/elections/hungary. 67 ‘The test of a democracy is not whether the economy is growing, employment is rising, or more couples are marrying, but whether people can choose and replace their leaders in free and fair elections.

Does Illiberal Democracy Exist?  185 ii. Poland Poland’s 1989 negotiated democratic transition preceded Hungary’s, but it followed Hungary’s constitutional backsliding after the Law and Justice Party (known as PiS), led by Jarosław Kaczyński, regained parliamentary elections in October 2015, after two years of rather unsuccessful governing between 2005 and 2007. PiS returned to power with a vengeance, committed to reshaping the entire constitutional system in order to create a ‘new and virtuous Fourth Republic’.68 This meant a systemic and relentless annihilation of all independent powers that could check the will of the ultimate leader. In that respect, his role model is Viktor Orbán.69 In 2011, PiS published a long document, authored largely by Kaczyński himself, on the party’s and its leader’s vision of the state. The main proposition of this paper is very similar to the one that Orbán described in a speech in 2009: a well-ordered Poland should have a ‘centre of political direction’, which would enforce the true national interest. This illiberal counter-revolution of both Orbán and Kaczyński is based on a communist rejection of checks and balances, as well as constitutionally entrenched rights.70 Unlike FIDESZ in 2011, PiS lacks the constitution-making or amending two-thirds majority in the Polish Parliament. Therefore, it started to act by simply disregarding the liberal democratic Constitution of 1997. The first victim was the Constitutional Tribunal, which already in 2007 had struck down important elements of PiS’ legislative agenda, including limits on the privacy of public officials to be screened and freedom of speech and assembly.71 In Orbán’s playbook, which is seemingly followed by Kaczyński, the other major target has been the media, the civil service and the ordinary courts. As opposed to Hungary, for the dismantlement of liberal democratic institutions PiS does not really needed a new constitution because what they have been doing since the autumn of 2015 is already a de facto change to the Constitution through sub-constitutional laws. Wojciech Sadurski calls this a constitutional breakdown resulting in an authoritarian regime.72 This is the test that Hungary’s political system now fails. When Viktor Orbán and his Fidesz party returned to power in 2010 with a parliamentary supermajority, they set about destroying the constitutional pillars of liberal democracy … By the 2014 elections, Orbán had rigged the system. Yes, multiparty elections continued, but his systematic degradation of constitutional checks and balances so tilted the playing field that he was able to renew his two-thirds majority in parliament with less than a majority of the popular vote (and did so again in 2018) … Orbán has transformed Hungary into not an illiberal democracy but a pseudo-democracy’. See L Diamond, ‘How Democratic Is Hungary?’ Foreign Affairs (September/October 2019). 68 Kaczyński’s conspiracy theory that liberal intellectuals had become allies to former communists led to a final split of the opposition movement Solidarity. The new government parties both in Hungary and Poland rejected ‘1989’ for the same reasons: namely, absence of radicalism of the democratic transition, and for the alleged liberation of the communist elites. See I Krastev, ‘Walesa, Gorbatchev and Freedom’s End’ The New York Times (14 March 2016). 69 As early as 2011 Kaczyński announced he wanted to create ‘Budapest in Warsaw. cf J-W Müller, ‘The Problem with Poland, The New York Review of Books (11 February 2016). 70 Wojciech Sadurski, professor of constitutional law, who was the Kaczyński brothers’ fellow student at the University of Warsaw in the 1970s, says that this vision bears a striking resemblance to the writings of Stanislaw Ehrlich, their joint ex-Marxist professor. See W Sadurski, ‘What Make Kaczyński Tick?’ (2016) I•CON. 71 About the battle for the Constitutional Tribunal see TT Koncewicz, ‘Polish Constitutional Drama: Of Courts, Democracy, Constitutional Shenanigans and Constitutional Self-Defense’ (2015) I•CON. 72 See W Sadurski, Poland’s Constitutional Breakdown (OUP, 2019). Professor Sadurski’s harsh criticism of the democratic backsliding both PiS and the Polish government initiated several court procedures

186  Gábor Halmai III. CONCLUSION

In the first part of this chapter, I tried to answer the question, whether there is a genuine constitutional theory of ‘illiberal constitutionalism’? I argued that the constitutional concept, which rejects liberalism as a constitutive precondition of democracy, cannot be in compliance with the traditional idea of liberal democratic constitutionalism. This concept has nothing to do with any majoritarian constitutional model based on the separation of power, or with political constitutionalism, or any kind of weak judicial review, and it misuses the concept of constitutional identity. The second part of the chapter investigated the social, economic and political relations of illiberal societies. Regarding the first issue I found that there has been a very weak historical tradition of liberalism and modernisation in the East-Central European societies, and also the main driving force of the transition to liberal democracy was to reach the living standard of the West. The lack of success to achieve this goal, together with the accumulation of wealth by some former members of the communist nomenclature, and the failures of redistributive justice efforts were the reasons for disappointment also in the liberal democratic pursuits. Regarding the economic relations, the rise of economic inequality and the decline of social security and solidarity has paradoxically also been caused by the neoliberal economic policy of some of the illiberal political forces. These political actors have changed the entire political and constitutional structure into an illiberal system, mostly not based on their ideological conviction, but rather for the sake of building up and keeping an unrestrained power. One of the reasons of the illiberal turn has been that there was a lack of consensus about liberal democratic values at the time of the transition. In the beginning of the democratic transitions in these new democracies, preference was given to general economic effectiveness over mass civic and political engagement.73 The satisfaction of basic economic needs was so important for both ordinary people and the new political elites that constitutions did not really make a difference.74 Between 1989 and 2004, all political forces accepted a certain minimalistic version of a ‘liberal consensus’, understood as a set of rules and laws rather than values, according to which NATO and EU accession were the main political goals. But as soon as the main political goals were achieved, the liberal consensus died,75 and full democratic consolidation was never achieved.76

against him. See Oepn Letter in Support of Wojciech Sadurski, Verfassungsblog (6 May 2019) at https:// verfassungsblog.de/stand-with-wojciech-sadurski-his-freedom-of-expression-is-yours/. 73 Dorothee Bohle and Béla Greskovits state that East Central European democracies had a ‘hollow core’ at their inception. See D Bohle and B Greskokovits, Capitalist Diversity on Europe’s Periphery (Cornell University Press, 2012). 74 See UK Preuss, Constitutional Revolution. The Link Between Constitutionalism and Progress (Humanities Press. 1993) 3. 75 See I Krastev, ‘Is East-Central Europe Backsliding? The Strange Death of the Liberal Consensus’ (2007) 18 Journal of Democracy 56–63. 76 J Dawson and S Hanley, ‘What’s Wrong with East-Central Europe? The Fading Mirage of the Liberal Consensus’, (2016) 7 Journal of Democracy 20–34.

Does Illiberal Democracy Exist?  187 An initial failure of the 1989 constitutional changes – namely the disproportional election systems – also contributed to the electoral victories of Fidesz in Hungary and PiS in Poland, the illiberal autocratic forces. In the case of Fidesz 53 per cent vote share resulted in 68 per cent in 2010 and even less than the majority of the votes again into two-thirds of the seats in Parliament both in 2014 and 2018. This made Fidesz able to change the entire constitutional system after its electoral success in 2010. PiS in 2015 got 51 per cent of the seats in the Sejm for 37.6 per cent of the votes, and again the majority of seats for 43.6 per cent of the votes in 2019. With their absolute majority they were able to enact laws – after packing the Constitutional Tribunal, even unconstitutional ones – without any need to consult with their parliamentary opposition. According to some authors, the prospects for liberal constitutional democracy in the newly independent states of Central and Eastern Europe following the 1989–90 transition were diminished by a technocratic, judicial control of politics, which blunted the development of civic constitutionalism, civil society, and participatory democratic government as necessary counterpoints to the technocratic machinery of legal constitutionalism.77 Adherents to this viewpoint argue that the legalistic form of constitutionalism (or legal constitutionalism), while consistent with the purpose of creating the structure of the state and setting boundaries between the state and citizens, jeopardised the development of participatory democracy.78 In other words, legal constitutionalism fell short, reducing the Constitution to an elite instrument, especially in countries with weak civil societies and weak political party systems that undermine a robust constitutional democracy based on the idea of civic self-government.79 One can raise the hypothetical question whether earlier and more inclusive or participatory constitution-making processes could have ensured the durability of democratic institutions. Indeed, there was no early constitution making, and the amendment processes that happened instead were not participatory. Neither Poland nor Hungary enacted a new constitution right after the democratic transitions of 1989. Instead, in both countries as a result of the Round Table negotiations, between the representatives of the authoritarian communist regime and their democratic opposition, the illegitimate legislature was put in the position of enacting modifications to the old Stalinist constitutions. This was done based on the elite agreement without any consultation with the people. In the case of Poland, the 1952 Constitution was slightly modified in April 1989, while in Hungary the 1949 Constitution was comprehensively amended in October 1989. This was called by Andrew Arato ‘postsovereign’ constitution-making.80 It is true that in Poland, the democratically elected 77 See this argument in P Blokker, New Democracies in Crises? A Comparative Constitutional Study of the Czech Republic, Hungary, Poland, Romania and Slovakia, (Routledge, 2013). Also Wojciech Sadurski argued that legal constitutionalism might have a ‘negative effect’ on new democracies and might lead to the perpetuation of the problem of both weak political parties and civil society. See W Sadurski, ‘Transitional Constitutionalism: Simplistic and Fancy Theories’ in A Czarnota, M Krygier and W Sadurski (eds), Rethinking the Rule of Law After Communism (CEU Press, 2005) 9–24. 78 See R Albert, ‘Counterconstitutionalism’ (2008) 31(1) Dalhousie Law Journal 4. 79 cf Sadurski (n 77) 23. 80 A Arato, ‘Post-Sovereign Constitution-Making in Hungary: After Success, Partial Failure, and Now What?’ (2010) 26 South African Journal of Human Rights.

188  Gábor Halmai Parliament enacted the so-called Small Constitution in 1992, but it only changed some elements of the state organisation, without the ambition of becoming the final closing act of the democratic transition. The new constitution was only enacted in 1997, again without participatory process, like a referendum. In Hungary, a similar new constitution-making effort failed in 1996, and even though the content of the 1989 comprehensive amendment fulfilled the requirements of a liberal democratic constitution, its heading had 1949 in it. With that Fidesz, after its electoral victory in 2010, could claim the need to enact a new constitution of the democratic transition and it had all the votes to enact what it wanted. But this was not a liberal democratic constitution anymore. One can only speculate whether an earlier and more participatory constitutionmaking process would have been a guarantee against backsliding. There is nothing to suggest that an earlier and more participatory constitution-making process would have prevented the populist turn. As the Polish example proves, even the existence of a liberal democratic constitution does not constitute an obstacle against backlash. In my view, those proponents of participatory constitutionalism who argue that with participation backsliding it would not necessarily have happened, do not sufficiently take into account the rise of populism and the lack of civic interest in constitutional matters, due to poor constitutional culture.81 So far, the liberal elite seems to be unable to protect the liberal democratic ideals, which certainly indicates that the special historical circumstances require a longer period of time to build up a liberal democratic political and constitutional culture. But the democratic backsliding is not a proof of the failure of liberal democracy altogether,82 as illiberal leaders and their court ideologists want people to believe.

81 See similarly the critical reviews on Blokker’s book (n 77) by Jiri Priban and Bogusia Puchalska in ICONnect. ‘Book Review/Response: Paul Blokker, Jiri Priban and Bogusia Puchalska on Civic Constitutionalism’ Int’l J. Const. L. Blog (10 September 2013). 82 In their book, Ivan Krastev and Stephen Holmes argue that the fact that liberal democracy had no alternative in 1989, and East Central European countries had to imitate the Western model, contributed to the success of illiberalism in the region. See I Krastev and S Holmes, The Light that Failed: A Reckoning (Allen Lane, 2019). In my view, there was both a rightist nationalistic and a leftist democratic socialist alternative during the post-communist transition, and copying the West could only be harmful if there would have been equally promising scenarios available. After all, the imitation of liberal democracy in Germany after World War II and in Spain, Portugal and Greece did not result in illiberal regimes.

12 Majority Rule, Democracy and Populism: Theoretical Considerations WOJCIECH SADURSKI*

T

he worldwide growth of populism around the world – from Poland to the Philippines, from Hungary to the US – has triggered the development of an influential idea that populism is a majoritarian corrective to what is an increasingly non-majoritarian model of democracy, with a number of ‘countermajoritarian’ devices built into it, such as the powers of courts and tribunals, of regulatory agencies and central banks, or supranational norm-producing institutions not accountable to the majority of a given polity. Under this perspective, populism is a desired and desirable majoritarian-democratic modification of excessively nondemocratic liberalism. As Cas Mudde put it succinctly, ‘In essence, the populist surge is an illiberal democratic response to decades of undemocratic liberal policies’.1 But how democratic is majority rule itself? The question may be seen as silly: after all, democracy is majority rule. Certainly it is so with certain constraints and limitations built into it – for instance for the sake of the protection of constitutional principles not subject to everyday amendment by a simple majority – but these constraints and limitations modify the scope of the application of majority rule rather than undermine it in its very essence. Whatever else democracy means, the argument goes, it must begin with the recognition of majority will as determinative of the policies the government pursues. Take majority rule away from the centre of political life and you dismantle the very essence of democracy. This is, in many respects, true. One cannot conceive of democracy simpliciter without the centrality of majority rule to it. But, as this short chapter will argue, the relationship between democracy and majority rule is more complex than such a simple proclamation might suggest. Majority rule, as a moral and political principle, is not self-justifying: it requires some good moral, principled justifications, and these justifications must resonate with those for democracy itself. In other words, we value majority rule for some reasons, and not as an inherently valuable idea,

* Challis Professor of Jurisprudence at the University of Sydney; Professor in the University of Warsaw. 1 C Mudde, ‘Europe’s Populist Surge’ (2016) 95 Foreign Affairs 25, 30.

190  Wojciech Sadurski and these reasons must be the same as that which we value in a democracy. The resonance between the rationales that can be provided for majority rule on the one hand and for democracy on the other is key to understanding the deep connection between majority rule and democracy. And an excavation of those deeper reasons both for the moral-political ideal of majority rule and for the political model of democracy must be sensitive to the fact that if a reason provided for the former (majority rule) is weak or questionable, it cannot figure in the justification for the latter (democracy) as allegedly supporting a connection between both concepts. And it is likely that some supports provided for populism rely precisely on such bogus grounds for majority rule. This at least will be the conclusion of this chapter. The chapter will proceed in the following way. First, I will reflect upon the best rationales for the majority rule, and will eliminate some obviously non-persuasive rationales (such as efficiency, simplicity, and intuitive judgments). Secondly, I will argue that the strongest and the most persuasive rationale for majority rule relies upon the ideal of the political equality of all citizens, and that the best understanding of an ideal of political equality (supporting that of democracy) appeals to equality of political opportunity. Thirdly, I will argue that equality of political opportunity has some important institutional implications both at the stage of political deliberation and at the stage of actual collective decision-making. Fourthly, I will conclude that contemporary populism, with its unconstrained majority rule, plebiscitary model of politics, and ‘winner takes all’ blueprint, offends against the major institutional implications of equality of political opportunity, and thus departs from, rather than enshrines, a model of democracy based on certain morally attractive rationales for the majority principle itself. I.  RATIONALES FOR MAJORITY RULE: THREE NON-STARTERS

Let me first consider briefly, and equally briefly dismiss, the weakest of the arguments for majority rule, namely that it is so intuitively correct that it should be taken as selfevident. Indeed in today’s practice, a great number of intuitively plausible procedures involve decisions by a majority: the laws passed by parliaments, the verdicts laid down by courts in panels composed of more than one judge, the election of a new pope by the conclave of cardinals, the regulations adopted by clubs and associations, the decision of faculty committees on controversial issues, as well as the informal decisions between friends as to where to dine together tonight. But it is enough to make this argument explicit to see how tenuous it is because we may, almost instantly, produce a number of counter-examples, that is, the contexts in which majority rule is not adopted, not even intuitively or prima facie. In such contexts, postulating majority rule would sound inappropriate, for instance when unanimity is required (as in many jury systems or in some voluntary organisations practicing blackballing in the admission of new members) and, conversely, there are contexts in which only one person, or a few persons, are in a privileged position to make the decisions for the group: consider some of the decisions in a family, in the army, or in a church structure. In particular, in those circumstances where the

Majority Rule, Democracy and Populism: Theoretical Considerations  191 rightness of the decision relies significantly upon the ascertainment of some empirical facts, relying on majority rule seems almost perverse. Consider the issue of establishing the criminal guilt of a particular public figure, such as in the once-notorious criminal trial of OJ Simpson in the US. It seemed that much of the general public held strong views about his guilt or otherwise, but to subject the verdict of the court to a national referendum would seem too absurd to seriously contemplate. For every instance in which we can claim that majority rule intuitively makes sense as a good collective decision-making procedure, we may counter it with an example where, equally intuitively, such a procedure would be nonsensical or grossly unfair. So no, majority rule cannot benefit from its alleged self-evident status. Or to put it more precisely: whoever claims that majority rule (as they do for so many other moral or political ideals) is ‘self-evident’ simply is unwilling or unable to produce any reasonable arguments for it. In the same category as the argument that it is self-evident is the argument (produced here arguendo only as I am unaware of anyone making a serious claim for this rationale) that majority rule displays a certain elegant simplicity and thus is easy to apply in practice. Without more, it is simply not true that majority rule is ‘simpler’ to operationalise than, for example, the principle of one person’s rule or that of unanimity. Finally, consider the third argument, namely that of efficiency. It may be thought that one of the main advantages of majority rule is that a decision supported by a majority will be likely to enjoy greater compliance in society than the minority-backed decision (or a single person’s decision) simply because there will be a larger number of those who substantively agree with the decision (having voted for it or for the representatives who enacted that decision) than those that oppose it. To be sure, ‘efficiency’ so understood (through the prism of a probability of compliance) would be even higher in cases of unanimity, but then we know that finding actual consensus for politically salient and difficult decisions is impossible so a requirement of unanimity would in fact give even a very small minority a power of veto over collective decisions, which is anathema to majority rule. But the efficiency-based argument for majority rule is implausible for a number of reasons. First, there are many, much more effective methods of ensuring compliance: for instance, by establishing mass terror and cruel penalties for non-compliance. Surely, efficiency does not render these methods legitimate in any way. Secondly, it is question-begging to suggest that those who support a given rule at the stage of contemplating it, that is, ex ante, are particularly likely to comply with it once it is in force, that is, ex post. Perhaps they are or perhaps they are not: it seems to be a merely contingent and context-sensitive proposition, much too weak upon which to hang such a momentous principle as that of majority rule. II.  THREE CONCEPTIONS OF POLITICAL EQUALITY

As these three putative rationalisations turn out to be non-starters, we have to search elsewhere. Fortunately, it is not too mysterious or controversial to claim that majority rule enforces an ideal of the political equality of citizens. Jeremy Waldron put it well by saying that majority rule ‘attempts to give each individual’s view the

192  Wojciech Sadurski greatest weight possible … compatible with an equal weight for the views of each of the others’.2 Waldron adds, ‘the method of majority decision also accords maximum decisiveness to each member, subject only to the constrain of equality. In this sense, majority-decision presents itself as a fair method of decision-making ….’3 Even a cursory reflection suggests that a correlative of the idea that every person should count equally (in her votes, choices, preferences, etc) is the idea that the majority should prevail. Any other decision-making rule seems to grant more weight to some people rather than others. But the relationship between majority rule and equality is far from obvious. Consider this simple example, meant to reduce ad absurdum the very principle of majority rule: ‘imagine you, me, and a third person in the same room. Two of us decide that you should give your life to serve us. Is our decision legitimate, do you have an obligation to obey simply because we were a majority within the room? … On the face of it, you can claim that our decision “enslaves” you and denies you “equal status” with us’.4 But this example, provided by Robert A Burt, shows that the decisions taken by the majority may lead to drastically inegalitarian results. This is clear and banal: the majority can exploit, oppress, and even enslave a minority. But this does not show that the majority rule itself does not presuppose some egalitarian moral principles. So the true question is what kind of equality is sufficiently attractive and at the same time so plausibly connected to majority rule that it can be seen to underlie the very ideal of democracy? A good way to proceed is by drawing some distinctions between (what may be called) different currencies of equality in a political context; in other terms, different answers to the question: equality of what? In this regard, Ronald Dworkin’s distinction between equality of impact and that of influence is most helpful. The difference is that while the impact a person makes is defined as ‘the difference he can make, just on his own, by voting for or choosing one decision rather than another’, the person’s influence is defined as ‘the difference he can make not just on his own but also by leading or inducing others to believe or vote or choose as he does’.5 When applied to the considerations of political equality, impact is not a useful category, claims Dworkin. In vertical relations (as between the citizens and officials) ‘equality of impact’ is just unthinkable (how can an ordinary citizen have an equal impact to that of the President?), while in the horizontal dimension (as between different citizens) it is not ambitious enough because it cannot account, for instance, for the importance of freedom of speech, of political associations, etc in contributing to political equality. This would seem to leave ‘equality of influence’ as the only attractive interpretation of political equality. Not so, warns Dworkin: to try to bring about equality of influence (in the sense just defined) would offend against a great number of important features of a liberal-democratic society. We would need to equalise not only those sources of influence which most of us consider to be illegitimate (such as unequal financial means), but also those which are perfectly legitimate sources

2 J

Waldron, The Dignity of Legislation (CUP, 1999) 148. 148, emphasis in original. 4 Robert A Burt, The Constitution in Conflict (Harvard University Press, 1992) 27–28. 5 R Dworkin, Sovereign Virtue (Harvard University Press, 2000) 191. 3 ibid

Majority Rule, Democracy and Populism: Theoretical Considerations  193 of unequal influence, and which are based on the fact that ‘some people are more politically motivated or trained or charismatic than others’.6 If we tried to equalise some of the sources of these inequalities (that in turn lead to unequal influence), it ‘would conflict with other egalitarian goals’7 and, more generally, it would be ­‘incompatible, even in principle, with other attractive aspects of an egalitarian society’.8 My own solution to this unwholesome dilemma is to postulate a third conception, building upon the inadequacies of equality of political influence and of impact: the ideal of equality of political opportunity – an ideal which Dworkin fails to consider, and yet which seems to be particularly well suited to addressing the specific concerns raised by him. Let us recall the main reason why he urges us to reject the ideal of equality of influence: it is because the ideal is unable to discriminate between different sources of political inequality, some of which may be legitimate and others not. The ideal of equality of opportunity simpliciter (ie, not only with regard to political opportunities) can be presented, in a somewhat stylised manner, as occupying a space halfway between a purely formal equality of opportunity and the equality of effect, where the distinguishing criterion concerns the grounds of access to the means of satisfying the conditions regulating the distribution of a particular good. When only few such grounds matter for our judgment of equality of opportunity being satisfied (and they are thin and easily satisfiable; for instance, a citizenship in a given state) then we call (often disparagingly) such an ideal a purely ‘formal’ equality of opportunity because it is unacceptably blind towards the many grounds of unequal access that we know are significant. If, on the other hand, all possible grounds of unequal access count for a judgment of equality of opportunity, then such an ideal effectively collapses into equality of outcome, because any unequal outcome is taken to be a sufficient symptom that inequality of access was at play. An ideal of genuine equality of opportunity must be thicker than formal majority rule (because it must be sensitive to a large number of factors which makes access for some of us more difficult due to the conditions required in a distribution of desired goods), but at the same time stop short of collapsing into equality of outcome because it must acknowledge that some causes of unequal outcomes are (or at least, may be) legitimate. If equality of opportunity is viewed in this way, then it resonates with the argument leading Dworkin to reject the ideal of equality of influence (in the Dworkinian strict sense of ‘influence’ contrasted to ‘impact’, as already mentioned). Indeed, one of the main reasons for rejecting this ideal is that some of the imaginable ways of equalising political influence would lead to highly unattractive results. The manner in which Dworkin depicts the ways that these results would be unattractive evokes the perversity of some ways of equalising the factor of qualification under the equality of opportunity analysis. For instance, one way of rendering influence more equally distributed would be by limiting the resources that people can freely spend on the means of politically influencing others. In a less inegalitarian society



6 ibid

196.

8 ibid

198.

7 ibid.

194  Wojciech Sadurski than our societies are, this would be contrary to the value of equality, Dworkin says, because it would ‘prevent some people from tailoring their resources to fit the lives they wanted though leaving others, who had less interest in politics, free to do so’.9 To translate this scenario into the language of equality of opportunity, such a result would plainly and obviously offend against equality of opportunity because it would equalise the outcomes conditioned by inequalities that can be traced fully to choice-sensitive factors. I have elaborated on the model of equality of political opportunity, in some detail, elsewhere.10 I will not rehearse the argument here. All I want to assert is rather modest and, hopefully, uncontroversial: that equality of political opportunity is an attractive and plausible interpretation of political equality; not that it is the interpretation. Under this assumption, we may now say that our task is to see whether equality of political opportunity is congruent with majority rule. And, theoretically, there are three possible answers to this question: (1) that there is no such congruence at all; (2) that there is an automatic and simple congruence (whereby implementing the majority rule procedure always gives effect to equality of political opportunity); and (3) that the majority rule procedure gives effect to political opportunities but only under some conditions and constraints. It is position (3) that I am going to advocate for, and in the process, specify the conditions and constraints that must be adopted if majority rule is going to promote rather than frustrate the ideal of equality of political opportunity. III.  EQUALITY OF POLITICAL OPPORTUNITY AND MAJORITY RULE

How is the principle of equal political opportunity related to majority rule? The relationship is only indirect. Equal political opportunity applies quite obviously to the deliberation stage of the political process. It is with respect to this stage that the concept of equal influence, as articulated by Dworkin, was generated in the first place (and indeed, it was defined in terms that are only relevant to the deliberation stage), and the ideal of equal political opportunity enters the stage as a remedy to the defects that the ideal of equal influence had. But it is worth asking: an opportunity to what sort of deliberation should be equalised, under the principle of equal political opportunity? From an individual point of view, the purpose of deliberation is, it would seem, two-fold: first, it is to acquire the best ideas and information for oneself; second, to affect the views of other people. Equal political opportunity is, obviously, mainly concerned with the second function of deliberation because it is the second function which is relevant to political influence. What can equal opportunities, with regard to this function, be the opportunities to? I suggest that the object of the opportunities (that is, the benefit which the opportunities are targeted towards) is located somewhere half-way along the spectrum between being able to communicate one’s views and being able to actually convince the audience to one’s views. The former good is too weak: a mere ability to communicate is too thin a good for people wanting to attain it, without more. The latter good, an ability to convince one’s audience

9 ibid

10 See

197, fn omitted. W Sadurski, Equality and Legitimacy (OUP, 2008) 77–91.

Majority Rule, Democracy and Populism: Theoretical Considerations  195 to one’s own views, is too strong to lend itself for equalisation. The likelihood of convincing the audience is largely dependent upon the audience’s prior views, which belongs to the category of factors outside of the speaker’s control and are not the subject of ‘equalisation’ in the equal-opportunity discourse. This is due to the various causes of disagreement between people that can neither be explained by a lesser rationality of some people than others, nor by the fact that those different views are merely rationalisations of people’s narrow interests, which themselves are different. John Rawls labelled these reasons ‘the burdens of judgment’.11 In Rawls’s view, those causes include the fact that the evidence bearing on a case is often conflicting and complex; there may be disagreement about the weight of different kinds of considerations that are relevant; concepts are often vague, indeterminate, and subject to hard cases; our experiences are different and these differences affect the way we assess evidence, etc. Even assuming that listeners are fully receptive to the speakers’ arguments, a number of decisive factors of the effectiveness of persuasion are, and should remain, outside the powers of speakers. So if the ability to communicate one’s views is too weak, and the ability to convince one’s audience is too strong, to constitute the object of political opportunity, what is a plausible in-between these two extremes? It can probably be characterised as the ability to effectively get one’s own political message across to the audience one wants to reach. Anything less is an insignificant good; anything more is implausible because it engages the factors which are, and should remain, outside the control of a person making such a communication. But it is quite plausible to claim that equal political opportunity in the deliberation stage of collective decision-making should mean equality of opportunity to reach one’s desired audience, to get one’s message across, to be heard. Elsewhere, I have argued at some length about the attractiveness of the ideal of an ‘equal opportunity to be heard’ as a plausible and meaningful interpretation of equalising expressive opportunities.12 I will not summarise my conclusions here, beyond stating that the ideal of equality of opportunity seems to effectively capture the various policies aimed at equalising access to the media of political communication because ‘(1) being heard by one’s audience is an important social good which many people seek, and (2) we may legitimately and meaningfully aim to reduce the impact of those factors which are outside the speaker’s control and affect his or her access to the means of effective speech’.13 So much for equal political opportunity at the stage of political deliberation. When it comes to the stage of actually making a decision, we obviously do not need to find an interpretation of the good of political influence: by voting (either in elections or referenda or in parliament) we do not try to influence anyone but we actually take the decision. It is too late to talk about influence here, and thus also about political opportunities to affect decisions. Majority rule is therefore an institutional embodiment of what Dworkin called ‘equal impact’: the weight that a person’s vote has (taken on its own) in collective decision-making. But there is an indirect connection between equal impact and equal political opportunity which parallels the connection

11 J

Rawls, Political Liberalism (Columbia University Press, 1993) 54–58. Sadurski, Freedom of Speech and Its Limits (Kluwer, 1999) 73–98. 85.

12 W

13 ibid

196  Wojciech Sadurski between voting and deliberation. If there was no vote at the end of the road (for instance, if the decision was to be taken by a benevolent dictator who would tolerate all sorts of deliberations but did not care about them one bit when taking decisions, or if the decisions were taken by lottery), then deliberation would be meaningless. It could, and perhaps would, still go on, but the motivations that people would have to participate in first-order deliberation (about the decisions to take), as opposed to second-order deliberation (about how to change the decision-making process) would be nil. So equality at the output stage of the system radiates upon the importance of equality at the input stage, so to speak. There should be a degree of continuity in the egalitarian credentials of all stages of the process, if equality is our true reason for settling upon majority rule. It is important to be clear about this connection. It is not my argument that if we violate the principle of equality of political opportunity at the deliberation stage then the effect of equality of impact at the stage of decision-taking (in the institutional form of majority rule) is in some way damaged or compromised. It is rather the case that the adoption of majority rule at the final stage reveals the sincerity of our intention to give effect to the principle of equality in the political process, and therefore the integrity of this intention demands that we try to respect it at earlier stages of the process as well, especially since these earlier deliberative stages inform the substance of the decision itself. IV.  POLITICAL EQUALITY, MAJORITY RULE, AND POPULISM

This has been a roundabout way of arguing that the connection between democracy and majority rule is mediated by the principle of equality (a particular conception of it: equality of political opportunity), but if that is the case, then certain institutional conditions are necessary for equality of political opportunity to occur, both at the deliberation stage and at the stage of decision-making. I cannot embark on a detailed account of what such institutional conditions might be like because it would call for an extended blueprint of an institutional theory of democracy – a much too ambitious task for this short chapter. But one can sketch such a design. At the deliberation stage, we need to have institutions in place which assure true freedom of expression, of assembly, of association, etc. These rights and freedoms are necessary for deliberation to be truly authentic, unconstrained, and unaffected (or at least not affected too dramatically) by the disparities in resources of social power. Not just the absence of censorship or prior restraint (in other words, not just the Hyde Park model of freedom of speech), but also forms of equalising access to public media may be considered as essential. There should also be precautions against the various forms of silencing dissident, unpopular, or minoritarian points of view. If some people are too harassed or intimidated to make their viewpoints known in public, deliberation is reduced, and so is equality of political opportunities. There should also be, occasionally, protections for anonymity in order to shield members of unpopular minorities against reprisals, social punishments, and opprobrium. There needs to be a culture of openness and toleration, under which expressions of new and unusual ideas are not instantly met with anger and intolerance.

Majority Rule, Democracy and Populism: Theoretical Considerations  197 In turn, at the decision-making stage, the institutional structures of equality of political opportunity should assure proper consideration of various proposed options and variants of the final decision, the possibility for unconstrained persuasion of the unconvinced and the undecided, room for compromise and ‘splitting the difference’, patience in respecting the rule of ‘audiatur et altera pars’. There should be room for consultation, various audits and statements by experts, social learning from the ‘best practices’, etc. All this can be implemented in deliberative legislatures. As Jeremy Waldron observes, ‘simplicity and haste are the obverse of responsible legislative decision-making, precluding, as they do, the time and space for thought and speech – and, within the realm of speech, for successive rounds of proposal, reply, amendment, and reconsideration that genuine engagement with legislative issues requires’.14 Representative democracy, at its best, offers scope and opportunities for representatives of the people to listen carefully to each other, and allows them to be convinced by an argument employed by their adversaries. Waldron beautifully describes this process as ‘a way of transforming impulse and sentiment into judgment, by and for the sake of the interplay of representative with constituent, constituent with party, representative with representative, representative with party, party with party, and citizen with citizens generally ….’.15 Reflection and careful deliberation are the cornerstones of the representative model; as Cass Sunstein puts it, reconstructing the views expounded in the Federalist Papers, ‘Representatives would have the time and temperament to engage in a process of reflection. … [They] would be free to engage in the process of discussion and debate from which the common good would emerge’.16 As one can see, both at the stage of deliberation and decision-making, modern populists do not act in accordance with the template just sketched. Populists’ regimes are impatient with freedom of speech for minorities, in particular unpopular and stigmatised minorities. And at the stage of decision-making, they dislike slow, patient deliberation in parliaments, preferring a ‘winner takes all’, plebiscitary model of politics, under which the leader (usually, a charismatic leader) obtains a carte blanche for the period of his or her parliamentary or presidential term. As Nadia Urbinati put it well, populists in power favour ‘a politics of partial inclusion that justifies a discriminatory use of state power against the minority’.17 Hence, the antipathy of modern populists to the separation and dispersion of powers that is seen as a constraint upon the political will of a homogeneous community; which it, naturally, is. Contemporary populism comes in different shapes and sizes, and I have recently offered a rather detailed account of one particular version of a populist model of politics: being that practised in Poland after 2015.18 But for all their differences and local eccentricities, all populisms have this common denominator: they abhor pluralism, minority rights, and constitutional constraints upon simple majority rule.

14 J Waldron, Political Political Theory (Harvard University Press, 2016) 141, endnote omitted. 15 ibid 142. 16 CR Sunstein, ‘Lessons from the American Founding’ in CR Sunstein (ed), Can It Happen Here? Authoritarianism in America (HarperCollins, 2018) 57, 69. 17 N Urbinati, ‘Populism and the Principle of Majority’ in C Rovira Kaltwasser, P Taggart, P Ochoa-Espejo and P Ostiguy (eds), The Oxford Handbook of Populism (OUP, 2017) 571, 586. 18 W Sadurski, Poland’s Constitutional Breakdown (OUP, 2019).

198  Wojciech Sadurski In these ways, they fail to implement equality of political opportunity which, as I had argued earlier in this chapter, infuses the procedure of majority rule with moral attractiveness and renders it meaningful. So if equality of political opportunity is the true rationale for majority rule-based democracy, populism is the opposite of democracy, so understood.

13 The Role of New Technologies in Deliberative Democracy JOSÉ LUIS MARTÍ*

I. INTRODUCTION

I

n 1962, while the war in Vietnam was getting worse and student movements all around Europe and the US started to mobilise and fight for civil and social rights, freedom and democracy, Douglas Englebart, an engineer working in the mythical Stanford Research Institute (SRI) at Menlo Park, and better known later on for being the inventor of the mouse, wrote a seminal report for a complete new way of understanding the role of the nascent digital technology: ‘Augmenting Human Intellect: A Conceptual Framework’. The whole world was in those years immersed in a time of change. New social movements of protest, new political and philosophical ideas of radical democracy, feminism, and decolonisation, new artistic and cultural trends (such as the new jazz, rock and roll, a new way of understanding cinema, the irruption of television, etc), were emerging and spreading all around the planet. The real cultural globalisation started back then. But it was, above all else, the development of computerisation and digital technology which had the biggest transformative potential. It was an optimal time for dreams and unabridged imagination, two words that were omnipresent in politics and culture (just think of Martin Luther King and John Lennon). Everyone wanted to live in a better world. And it is not surprising that in that context the pioneers of digital technology were seeking exactly the same thing: how to change the world for the better. Englebart thought of his Research Report as the ‘public debut of a dream’. As he stated in the abstract: This is an initial summary report of a project taking new and systematic approach to improving the intellectual effectiveness of the individual human being. A detailed conceptual framework explores the nature of the system composed of the individual and the tools, concepts, and methods that match his basic capabilities to his problems. One of the tools that shows the greatest immediate promise is the computer when it can be harnessed for direct online assistance integrated with new concepts and methods’.1 * Pompeu Fabra University. 1 D Englebart, ‘Augmenting Human Intellect: A Conceptual Framework’, Report of the Stanford Research Institute (1962) ii.

200  José Luis Martí Almost 60 years later, it is time to get back to Englebart’s dream. New technologies have proven to have a great potential for being destructive of democracy and freedom. This is true. But they have also proven Englebart right. They have an enormous capacity to strengthen human intellect, both at the individual and collective level. And this is the exact key role that new technologies should have in our societies, not to mention in a deliberative democracy. Their central role must be that of augmenting human individual and collective intelligence to strengthen the quality and legitimacy of democracy and protect us from democracy’s oldest enemy: domination. In this chapter I will review the exact ways in which new technologies can play that role. As I will show, technologies are essential to protect us from the dangers they create themselves. The idea that new technologies in general, and AI in particular, is compromising our privacy and basic freedoms and may kill democracy is gaining visibility.2 However, and let me be very clear on this, there is no way back from the digital revolution. Digital technologies are unavoidable. They are simply too good to give them away. On the other hand, the dangers they reinforce or reinvigorate always existed. Technology is certainly instrumental, for instance, to more sophisticated forms of domination. But domination is not new at all. And digital technologies are also instrumental to the cure of that malaise. The conclusion I suggest, however, is not that we need good applications of technology to fight against its wicked applications in order, so to speak, to remain in the same place. That would be enough as a justification. But my purpose in this chapter is not, so to speak, defensive of democracy and freedom. On the contrary, I am convinced that Englebart was fundamentally right in identifying digital technology as key to augmenting our intelligence and our capacity to deal with the many and complex challenges that are threatening our world today, and ultimately to strengthening democracy and making progress in our dreams of having a better world. Digital technologies have the potential for allowing democracy to take a big leap forward. In the next section, I present the idea of deliberative democracy and explain why it is so important for us. I also mention some of the main threats against democracy which are leading some people to claim that democracy is in crisis. In section III, I briefly elaborate on the idea of collective intelligence and its importance

2 H Rheingold, Smart Mobs. The Next Social Revolution (Basic Books, 2002); H Rheingold, Net Smart. How to Thrive Online (The MIT Press, 2012); J Lanier, Who owns the Future? (Simon & Shuster, 2013); J Lanier, Ten Arguments for Deleting Your Social Media Accounts Right Now (Henry Holt and Co, 2018); N Bostrom, Superintelligence. Paths, Dangers, Strategies (OUP, 2014); Z Tufekci, Twitter and Tear Gas (Yale University Press, 2017); D Helbing et al, (2017) ‘Will Democracy Survive Big Data and Artificial Intelligence?’ (2017) Scientific American; J Bartlett The People vs. Tech. How the Internet is Killing Democracy (and how we save it) (Random House, 2018); P Nemitz, ‘Constitutional democracy and technology in the age of AI’ (2018) Phil. Trans. R. Soc. A. 376; L Floridi et al, ‘AI 4 People’s Ethical Framework for a Good AI Society: Opportunities, Risks, Principles, and Recommendations’ (2018) 28 Minds and Machines 689–707; F Pasquale, ‘A Rule of Persons, Not Machines: The Limits of Legal Automation’ (2019) 87(1) George Washington Law Review 1–55; C Álvarez Pereira, ‘Digital for Life? The Blind Spots and Its Reframing for Desirable Futures’, IEEE 18th International Conference on Cognitive Informatics and Cognitive Computing, manuscript (2019); D Innerarity, Una teoría de la democracia compleja. Gobernar en el siglo XXI (Galaxia Gutenberg, 2020); C Veliz, Privacy Is Power. Why and How You Should Take Back Control of Your Data (Transworld, 2020); F Pasquale, New Laws of Robotics (The Belknap Press of Harvard University Press, 2020).

The Role of New Technologies in Deliberative Democracy  201 to democracy. Finally, in section IV I review the major negative impacts that digital technologies are having on democracy, especially regarding the factors of its crisis, but I also provide several examples of how new technologies may strengthen the quality of our democracies and our governance. II.  DELIBERATIVE DEMOCRACY AND POLITICAL LEGITIMACY

Deliberative democracy is the ideal of democracy according to which legislative and governmental decisions in particular, and public decisions in general – with only a few exceptions – in order to be politically legitimate, should be taken as a result of a process of an ongoing public deliberation in which citizens must have been able to participate, directly or indirectly, as free and equals, arguing for their preferred solutions with the aim of, in Habermas’ famous dictum, convincing others ‘by the force of the better argument, and not by the argument of force’.3 Under ideal conditions, we might assume, such public deliberative process should be conducive to large political consensus based on public reasons.4 And, insofar as certain (not necessarily ideal) conditions are granted, some of which I come back to in the next section, these deliberation-based agreements and decisions may have epistemic value.5 However, this ideal of deliberative consensus based on public reasons, correctly understood, does not imply neither that actual political pluralism is bad or a sign of a failure,6 nor that self-interest, or political strategic behaviour, or social protest and resistance, or concern for underlying imbalances of power, should be all ruled out or have no place in our democracies.7 This ideal establishes a normative aspiration and provides a scalar standard that is very useful to assess actual institutions, processes and decisions from the point of view of democratic legitimacy.

3 J Habermas, [1992] Between Facts and Norms (The MIT Press, 1996); see also C Nino, The Constitution of Deliberative Democracy (Yale University Press, 1996); A Gutmann and D Thompson, Democracy and Disagreement (Harvard University Press, 1996); J Bohman and W Rehg (eds), Deliberative Democracy. Essays on Reason and Politics (The MIT Press, 1997); J Elster (ed), Deliberative Democracy (CUP, 1998); J Cohen, ‘Deliberation and Democratic Legitimacy’ in A Hamlin and P Pettit (eds), The Good Polity (Blackwell, 1998) 17–34; J Fishkin and P Laslett (eds), Debating Deliberative Institutions (Blackwell, 1999); S Besson and J Luis Martí (eds), Deliberative Democracy and Its Discontents (Ashgate, 2006); JL Martí, La república deliberativa. Una teoría de la democracia (Marcial Pons, 2006); JL Martí, ‘The Epistemic Conception of Deliberative Democracy Defended’ in S Besson and JL Martí (eds), Deliberative Democracy and Its Discontents (Ashgate, 2006) 27–56; J Mansbridge et al, ‘The place of self-interest and the role of power in deliberative democracy’ (2010) 18(1) Journal of Political Philosophy 64–100; J Mansbridge and J Parkinson, Deliberative Systems (CUP, 2012); C Lafont, Democracy Without Shortcuts: A Participatory Conception of Deliberative Democracy (OUP, 2020). 4 J Rawls, ‘The Idea of Public Reason Revisited’ (1997) 64(3) The University of Chicago Law Review 765–807; JL Martí, ‘Pluralism and consensus in deliberative democracy’ (2017) 20(5) Critical Review of International Social and Political Philosophy 556–79; Lafont (n 3). 5 Nino (n 3); Martí, La república deliberativa (n 3); D Estlund, Democratic Authority. A Philosophical Framework (Princeton University Press, 2007); H Landemore, Democratic Reason. Politics, Collective Intelligence and the Rule of the Many (Princeton University Press, 2013). 6 Martí (n 4). 7 Mansbridge et al (n 3); JL Martí, ‘The Right to Protest and Contestation in a Deliberative Democracy’ in Martin Belov (ed), Peace, Discontent, and Constitutional Law: Challenges to Constitutional Order and Democracy (Routledge, 2021).

202  José Luis Martí The expression ‘deliberative democracy’, as Jon Elster rightly put it, has two components: the democratic part, which requires full, direct or indirect, inclusion of all affected capable adults in public decision-making; and the deliberative part, which requires such decision-making process to start giving everyone the possibility to exchange reasons and arguments in favour or against certain positions and engage in a process of reciprocal argumentation with the aim of convincing others, and a disposition to be convinced by those others if they show better arguments.8 It would be a mistake to presume that an indirect citizen engagement, one that comes mediatised through political representation, is necessarily worse or a second-best in terms of the ideal of full inclusion regarding any direct form of engagement, such as a plebiscitary government run by permanent referenda. For the same reason, it would be a mistake to presume that, in real conditions, any departure from idealised forms of impartial argumentation and rational debate, such as some varieties of self-interested mobilisation or social protest, would be equally wrong or a second best. Social protest and even some exercises of civil disobedience might actually pay an excellent service to the ideal of deliberative democracy, since they may be the most adequate form of stating some demands and criticising social and political injustice. They should actually have a central role in any well-functioning deliberative democracy.9 What the ideal of deliberative democracy centrally requires from our real-life political systems is the introduction of fully inclusive and quality deliberative processes in our public institutional decision-making, particularly in our legislatures,10 as much as the existence of a healthy non-institutional public sphere in which an ongoing, unrestricted, open, quality public deliberation should take place.11 Moreover, as Habermas develops in his view of the Two-Track Model, these institutional and non-institutional, or formal and informal, realms of deliberative democratic politics should have an adequate articulation so that democratic representatives and public officials, on the one hand, and ordinary citizens, on the other, may engage in turn in some deliberative relationship. Asking citizens to review what their representatives do every four years in the elections, and cast their votes, as a way of approving or refusing their performance, is not enough. Generalised, effective, and fluid mechanisms of engagement and deliberation between ordinary citizens and politicians and officials are also needed in order to ensure that formal deliberations taking place within the institutional system, both intra- and inter-institutions,12 are really representative of people’s interests and views. As contemporary republicans also committed to the ideal of deliberative democracy like Philip Pettit have clearly shown, democratic political legitimacy requires the existence of sufficiently widespread and effective mechanisms of public contestation and popular control through which the people can exert their ultimate

8 Elster (n 3); see also Habermas (n 3); Gutmann and Thompson (n 3). 9 Martí (n 7). 10 J Bessette, The Mild Voice of Reason: Deliberative Democracy and American National Government (The University of Chicago Press, 1994). 11 J Habermas, [1962] The Structural Transformations of the Public Sphere (The MIT Press, 1989); Habermas (n 3). 12 JK Tulis, ‘Deliberation Between Institutions’ in Fishkin and Laslett (eds) (n 3) 200–11.

The Role of New Technologies in Deliberative Democracy  203 sovereign power over what their representatives decide and do. Democracy does not require, not even ideally, that everyone take part in every public decision-making.13 There is nothing wrong in the delegation of power to certain individuals and institutions, which is not only desperately needed in our big-scale and increasingly complex democracies, but also a good articulation of our overall interests, not all of which are strictly political. But the political representation that emerges from such delegation in order to be democratic and legitimate must always ensure that the law, and by extension public decisions in general, falls under the ultimate control of the people, so that such law can be deemed to protect the people’s interests and views and be expressed on the people’s terms.14 Only then can we properly say that our democratic institutional representative system realises the ideal of self-government to a sufficient degree. Hence, the importance of public contestation and protest, and the crucial role that social movements and civil associations such as NGOs and other kinds of public watchdogs play, is absolutely central. There must be institutional mechanisms of public deliberation, participation and engagement, as the Habermasian Two-Track Model requires, but also a healthy and vivid public life able and always ready to react, contesting and protesting public decisions when injustice arises.15 This theory of deliberative democracy, in its republican form or in any other ­variant, is the dominant view today in democratic theory, even if, of course, there is much discussion about how to finely understand it, especially on the details. But, insofar as democratic legitimacy is concerned, the ideal of deliberative democracy is largely regarded as the correct one. It is important to understand here the crucial distinction, nowadays almost unanimously accepted by all political philosophers, between justice and legitimacy.16 There are different ways to draw such distinction, but let me use what I take to be the clearest and most economic one, even at the price of being over-simplistic, which is also largely compatible with most of the different understandings: legitimacy and justice are, simply put, the two realms of normative political philosophy that aspire to answer two different normative questions, respectively. Justice aspires to answer the question of what is the correct thing to decide and do for political institutions in a particular situation or as an instance of general lawmaking. In order to know whether a decision or law is just, we need to revise its content, its substance, and assess it against a certain substantive standard. Such a substantive standard must be provided by a particular theory of justice. Different

13 P Pettit, Republicanism. A Theory of Freedom and Government (CUP, 1997); P Pettit, On The People’s Terms. A Republican Theory and Model of Democracy (CUP, 2012). 14 Pettit On The People’s Terms ibid. 15 ibid. 16 For a clear and compelling drawing of such distinction, see Pettit (ibid) Ch 1; see also T Christiano, ‘Democracy’ Stanford Encyclopedia of Philosophy (2006) at https://plato.stanford.edu/entries/democracy/; T Christiano, The Constitution of Equality (OUP, 2008); T Christiano, ‘Authority’ Stanford Encyclopedia of Philosophy (2012) at https://plato.stanford.edu/entries/authority/; JL Martí, ‘Democratic Legitimacy and the Sources of International Law’ in S Besson and J d’Aspremont (eds), The Oxford Handbook on the Sources of International Law (OUP, 2017) 724–45; S Besson and J Luis Martí (eds), ‘Legitimate Actors of International Lawmaking. Towards a Theory of International Democratic Representation’ (2018) 9(3) Jurisprudence 504–40.

204  José Luis Martí theories of justice may overlap and therefore agree on their assessment of a particular decision or law, but no assessment is possible unless you presuppose at least one particular theory of justice. As it happens, however, theories of justice endorsed by different people usually differ in their evaluations of concrete decisions or laws, and this is because they provide different, sometimes very different, substantive standards for the evaluation. And this fact, the fact of deep and pervasive disagreement about the preferred theory of justice, is actually the first of the two main reasons why the question that legitimacy is concerned with is of the highest importance.17 Legitimacy aspires to answer the question of who (and how) should make the public decisions and laws, perceived as a, at least partially, content-independent question. Thus, regardless of the content of such decisions and laws – with perhaps some exceptions – we may ask whether the person or institution who made them had the right to do so and whether they used the right mechanism and followed the right procedure. In a world characterised by such pervasive disagreements about justice, it turns out to be of the utmost importance that we can at least agree on who should be given the right to rule and under what circumstances such person or institution may legitimately exert such a right, in a way that is mostly independent of our respective and differing substantive theories of justice. Thus, the theory of legitimacy aspires to provide such a mostly content-independent18 normative standard that allows us to assess whether a particular decision or law was made by the right person or institution following the right procedure and in the right circumstances. Previously I said that the pervasive fact that we deeply disagree about what justice requires gives us a reason to care about political legitimacy. We cannot be indifferent to who makes public decisions and how, since depending on who that person is, they will make decisions that we may regard as just or unjust. The second reason is that, independently of the justice or injustice of public decisions, we should not be indifferent to who (and how) makes public decisions, that is, decisions that apply to us all and that, in one way or another, are taken in our name. This is because we care about being able to run an autonomous life, both at the individual and collective level. We all have this experience at the individual level. No matter how right others’ paternalistic decisions over our lives may be, we give value to the fact of being able to make our own decisions, including the capacity of making our own mistakes, in what regards the way we run our lives, especially when third parties are not involved. The same applies to the collective level, with the additional feature that in that area third-party affectation is always the case, unless unanimous agreement is obtained. No matter how right others’ paternalistic decisions might be over our public life, over our living together, we give value to the fact of being able to collectively make our

17 Marti, ‘Democratic Legitimacy and the Sources of International Law’ (n 16); Besson and Marti (n 16). 18 In the text I say that a legitimacy standard must be ‘mostly content-independent’, or that such standard must allow us to assess particular decisions and laws regardless their content with ‘perhaps some exceptions’. The reason for these caveats is that some political philosophers argue that legitimacy requires some very basic substantive justice as a precondition. Thus, an authority that makes a decision that grossly violates human rights, such as committing a genocide, can hardly be regarded as a legitimate authority, or at least such a decision should not be considered legitimate. Not everybody agrees on this, however. But I do not need to take sides in this chapter, and thus I prefer to leave this point open.

The Role of New Technologies in Deliberative Democracy  205 own decisions, including the capacity of making our own collective mistakes. This is, finally, nothing other than the idea of self-government, which we in modern times connect to the idea of democracy. As I discuss in the next section, such an idea of self-government must be also connected with the increasingly important notion of collective intelligence. It is important to notice, however, that democracy in general, and not only this particular deliberative understanding of it, is in crisis in our present world.19 Several factors are threatening the future of democracies, some of which are being stimulated by the emergence of digital technologies. Let me simply mention the most important ones. First of all, democracy, as a form of self-government, can only survive insofar as citizens believe in it and trust in the democratic institutions that support it. But we are living in times of a significant breach in social and political trust as well as of a decline in the levels of support for democracy as the best political regime.20 In the eyes of many scholars and ordinary citizens the representative bridge between representative bodies and political parties and the citizenry is broken. This is why many speak about a crisis of representation, rather than a crisis of democracy. Another major problem that is connected with the latter, perhaps it even derives from it, is the emergence of populism all around the world.21 Let me be very clear: populism is not a form of democracy. It has nothing to do with direct or participatory democracy or with empowering the people. It is actually the opposite of that. Populism today is, and has always been in our history, just a strategy of some elite to manipulate the people and use it to throw away the ruling elite. Such populist elite has never intended to empower the people, but to empower itself and remain in power as long as possible. This is true of Perón, and Berlusconi, and LePen, and Salvini, and Trump, and Bolsonaro, and any other commonly accepted example of populism. Still an additional threat to democracy, which also connects to the former two, is that of fake news and polarisation. This phenomenon is occurring in every democracy and is quickly eroding our common forums and spaces of plural deliberation in the informal public sphere. This is one of the factors of democratic crisis that is more closely related to the emergence of digital technologies. A fourth major concern for modern democracies is the mismatch between the most important challenges and dangers that our political systems must face, such as climate change, global health – including the fight against the pandemics – nuclear security, global inequalities and injustice, among others, the protection of human rights, and the political resources that nation states may mobilise. We are in need of more effective global political solutions, whether they come either from brand new global democratic institutions or from qualitatively better forms of global cooperation among democratic states. Finally, and as I discuss in greater detail in the last section, we are living with

19 Y Mounk, The People vs. Democracy. Why Our Freedom Is in Danger and How To Save It (Harvard University Press, 2018); S Levitsky and D Ziblatt Hoe Democracies Die (Crown, 2018); A Przeworski, The Crises of Democracy (Harvard University Press, 2019). 20 RS Foa, and Y Mounk, ‘The Danger of Deconsolidation: The Democratic Disconnect’ (2016) 27(3) Journal of Democracy 5–17. 21 J-W Müller, What is Populism? (University of Pennsylvania Press, 2016).

206  José Luis Martí unprecedented levels of global concentration of power in authoritarian regimes, like China and Russia, and in a few private corporations, like Google, Amazon, Facebook or Apple. To conclude this section, let me summarise it by saying that deliberative democracy is the dominant conception of political legitimacy today, and that it requires, at least ideally, that public decisions and laws should be made as a result of a process of an ongoing public deliberation in which citizens must have been able to participate, directly or indirectly, as free and equals, arguing for their preferred solutions with the aim of convincing each other and achieving some general reasonbased consensus. This ideal comes with a series of very important implications for our institutional design as well as for the way in which our democratic life in the public sphere is run, many of which I have tried to outline in this section. But it also faces important major threats on a more practical level that will probably require deep transformations in our democratic systems to deal effectively with them. Like many other scholars, I am convinced that the idea of collective intelligence that is presupposed by the notion of self-government should be the main source of energy for guiding such much needed transformations. III.  DEMOCRACY AND COLLECTIVE INTELLIGENCE (CI)

The idea of collective intelligence is far from being new. The Ancient Greeks were already familiar with it. Aristotle is credited for having explicitly defended the thesis of ‘the wisdom of crowds’ in his Politics,22 although the same view was also defended by Demosthenes, Democritus, Protagoras, and Thucydides, among many others.23 Many philosophers and social scientists across history, like Machiavelli, Spinoza, Condorcet, Rousseau, John Stuart Mill, Dewey, Hayek, Rawls, and Habermas, have been aware of the power of collective intelligence (CI). Despite this idea’s long history, however, we still know very little about how CI works. More research about how groups of people can decide and act intelligently is needed. Fortunately, in the last few years we have seen an explosion in the literature on this topic.24 We can actually

22 Aristotle [1981] (4th century BC) Politics (Penguin); see also JL Martí, ‘Aristóteles y la sabiduría de la multitud’ (2018) 8 Teoria Politica 139–66. 23 J Ober, Mass and Elite in Democratic Athens (Princeton University Press, 1989). 24 See for instance P Levy, L’Intelligence Collective: Pour Une Anthropologie du Cyberspace (Editions La Decouverte, 1994); Rheingold, Smart Mobs. The Next Social Revolution (n 2); Rheingold, Net Smart. How to Thrive Online (n 2); J Surowiecki, The Wisdom of Crowds (Little Brown, 2004); L Hong and S Page, ‘Groups of Diverse Problem Solvers Can Outperform Groups of High-Ability Problem Solvers’ (2004) 101(46) Proceedings of the National Academy of Sciences of United States 16385–89; C Sunstein, Infotopia: How Many Minds Produce Knowledge (OUP, 2006); S Page, The difference. How the Power of Diversity Creates Better Groups, Firms, Schools (Princeton University Press, 2007); B Noveck, Wikigovernment. How Technology Can Make Governments Better, Democracy Stronger and Citizens More Powerful (Brookings Institution, 2009); B Noveck, Smart Citizens, Smarter State (Harvard University Press, 2015); Landemore (n 5); T Malone and MS Bernstein (eds), Handbook of Collective Intelligence (MIT Press, 2015); G Mulgan, Big Mind. How Collective Intelligence Can Change Our World (Princeton University Press, 2018); T Malone, Superminds. The Surprising Power of People and Computers Thinking Together (Little Brown, 2018).

The Role of New Technologies in Deliberative Democracy  207 say that CI has emerged as a new entire field of interdisciplinary research, where philosophers, mathematicians, social scientists, biologists, and computer scientists collaborate to try to understand under what exact circumstances groups of individuals may develop and exercise their cognitive capacities.25 As it happens with most social concepts, especially at the early stages of our study of them, the concept of CI is controversial and diverse definitions have been provided. All of them agree that CI refers to a certain general capacity of groups that, based on certain cognitive components, allows them to make collective decisions and take collective action that may be regarded as rational or non-arbitrary. As Howard Rheingold emphasised, this capacity generally emerges from certain conditions of coordination, cooperation, and collaboration.26 In addition to that, as we will see in the next section, and as Englebart made clear from the very beginning, CI may be largely strengthened or augmented by the use of new technologies. Some definitions of CI are very broad, such as the one popularised by some of the seminal works in this area by Thomas Malone: collective intelligence is just the result of ‘groups of individuals acting collectively in ways that seem intelligent’.27 Intelligence, for Malone, must be understood as ‘the ability to solve problems well’ and it seems obvious that groups can have that too.28 If a group meets certain basic conditions that allow it to have such ability, at least apparently, they become a ‘supermind’.29 By using such a minimalist and broad understanding, Malone intends to keep neutral regarding the controversial technical notion of intelligence and the very rich philosophical disputes around the idea of collective action and group agency. Others endorse more precise definitions. Mulgan, for instance, defines collective intelligence as ‘any kind of large-scale intelligence that involves collectives choosing to be, think, and act together’, so for him, CI ‘is in two senses a concept about choice: who we choose to be and how we choose to act’.30 Interestingly, this act of choice may be conscious or unconscious. As the literature of social choice emphasised from the 1950s onwards, ‘some mechanisms allow individual choices to be aggregated in a socially useful way without requiring any conscious collaboration or shared identity’.31 This connects with a quite generalised assumption in the literature: namely, groups of individuals may develop CI even if all their members are unaware of it. But most scholars of CI share the further assumption that certain specific kinds of groups governed by certain specific kinds of rules and systems, and under some specific conditions that foster collaboration, may generate higher forms of CI, especially when they make use of the new technologies to create some combination of humans and machines.

25 Malone and Bernstein (n 24) 1–13. 26 Rheingold, Smart Mobs. The Next Social Revolution (n 2); Rheingold, Net Smart. How to Thrive Online (n 2); see also Noveck, Wikigovernment (n 24); Noveck, Smart Citizens, Smarter State (n 24) and Mulgan (n 24) for more developed analyses of how these collaborations may emerge. 27 Malone and Bernstein (n 24) 1; see also Malone, Superminds (n 24) 20. 28 Malone, Superminds (n 24) 8. 29 ibid 20. 30 Mulgan (n 24) 14–15. 31 ibid 15–16.

208  José Luis Martí These are what Mulgan refers to as ‘hybrid assemblies’,32 or what Rheingold calls ‘virtual communities’,33 or what Benkler simply calls ‘networks’.34 When we speak about CI we are attributing to groups of individuals a feature that is normally attributed to some individuals. It is important to notice that, even if we attribute some elements or some degrees of intelligence to certain kinds of nonhuman animals, the highest forms of individual animal intelligence that we know are exclusive of humans, and more specifically of human beings that develop their conditions of living an autonomous life, that is, of living their lives under cognitively informed, structured free choices or judgements, some of them of a second order kind.35 There are many and diverse conditions of autonomy, but they certainly include some level of training or education, some basic wellbeing, and some basic conditions of dignity and self-respect. Thus, even if groups may definitely seem to have some kind of collective intelligence, as Malone rightly points out, it is far from obvious that they really have it, at least in the same sense that human autonomous individuals do. This is why the first relevant question turns to be under what conditions or requirements groups may really develop some level of intelligence. In my view, the idea of CI presupposes, first of all, some form of group or ­collective agency, some form of common mind, as some authors have called it, which is certainly thicker than Malone’s minimalist definitional requirements. Philosophers have been discussing for more than 30 years now about how such an idea of group agency might be understood.36 And we do not need to take sides for any of the views advanced by them in particular. But all of them include some basic conditions regarding the rules that explicitly or implicitly govern the group and allow it to count as having a collective will, as well as being able to make decisions and act collectively. These would be, for instance, rules designating who is allowed to make decisions in the name of the group and how, that is, under what conditions, or through which procedure, individual preferences might be aggregated into social or collective ones. And other rules that determine under what condition certain features may be attributed to the whole group (as when we talk of collective actions, or collective intentions, or group responsibility). As I say, all these different types of rules might be just implicit, in which case the existence of certain cultural norms of coordination, cooperation and collaboration and certain participatory attitudes distributed within the group become crucial, as Rheingold rightly notes.37 The idea of group agency is very complex from a

32 ibid 27–30 and Ch 18. 33 Rheingold, Smart Mobs. The Next Social Revolution (n 2) and Rheingold, Net Smart. How to Thrive Online (n 2) Chs 4 and 5. 34 Y Benkler, The Wealth of Networks: How Social Production Transforms Markets and Freedom (Yale University Press, 2006); Y Benkler, The Penguin and the Leviathan. How Cooperation Triumphs Over Self-Interest (Crown Business, 2011). 35 On the idea of second order decisions, see C Sunstein and E Ullman-Margalit, ‘Second Order Decisions’ (1998) John M. Olin Program in Law and Economics Working Paper 57. 36 See, for instance, P Pettit, The Common Mind. An Essay on Psychology, Society and Politics (OUP, 1993); C List, and P Pettit Group Agency (OUP, 2011); AS Roth, ‘Shared Agency’ Stanford Encyclopedia of Philosophy (2017) at https://plato.stanford.edu/entries/shared-agency/. 37 Rheingold, Smart Mobs. The Next Social Revolution (n 2) and Rheingold, Net Smart. How to Thrive Online (n 2).

The Role of New Technologies in Deliberative Democracy  209 philosophical point of view. It is sufficient for us now to say that what exact kinds of rules are needed in order to have a group agency remains an open question. Even if we still do not know much about the specific conditions in which groups may develop their shared agency and their CI, and therefore decide and act more autonomously maximising the ability to make the correct choices, it is clear that this notion of CI is intrinsically linked to the ideal of deliberative democracy and selfgovernment that I described in the previous section. In other words, if we want our democracies not only to be minimally legitimate, but also decide and act intelligently, that is, make better decisions and laws, enact better policies, and, ultimately, govern themselves better, we must achieve a better comprehension of how CI works, which includes a question about under what epistemic conditions groups as large as political communities can make those intelligent choices.38 What is more, if the factors that lead some people to speak about the crisis of democracy and the crisis of representation that were summarised at the end of the last section are taken into consideration, it is even more important that we care more about the specific ways in which CI might be empowered. And it is true that we do not know enough in this area and much more interdisciplinary research is needed. But we know quite a lot after 25 centuries of thinking about ‘the wisdom of crowds’. Let me summarise some of the things we know, which will be of much help for my assessment of the role that technologies may play in strengthening deliberative democracy and augmenting our CI in the next section. First of all, we know that groups may have the ability to make right decisions under the right conditions. This is so because of several factors. Let me group all these factors under three categories, which I will refer to as three different powers of CI. The first and most basic power may be called the power of aggregation – it has also been called ‘the miracle of aggregation’ – which is the one we know better. As Aristotle already famously noticed, the many, who are not as individuals excellent men, nevertheless can, when they have come together, be better than the few best people, not individually but collectively, just as feasts to which many contribute are better than feasts provided at one person’s expense.39

A group of people, especially a large one, may outperform, in solving certain kinds of problems or making certain kinds of decisions, any individual or even a subset of the best members of such group. There are different factors that explain this phenomenon. One is the so-called ‘law of the big numbers’, or Bernoulli’s Theorem, after the Swiss mathematician who developed the first complete mathematical proof, in Ars Conjectandi (1713), of an insight previously given by Gerolamo Cardano in the sixteenth century. The idea behind such law or theorem is very simple. The expected value of something (for instance of tossing a coin or making a prediction) is much

38 Nino (n 3); Martí, La república deliberativa (n 3); Martí, ‘The Epistemic Conception of Deliberative Democracy Defended’ (n 3); Estlund (n 5); Noveck, Wikigovernment (n 24); Noveck, Smart Citizens, Smarter State (n 24); Landemore (n 5); S Linares, Democracia participativa epistémica (Marcial Pons, 2017); Lafont (n 3). 39 Aristotle (n 22) Book III, 1281a–1281b.

210  José Luis Martí more accurate, the larger the number of iterations we introduce. Getting heads when tossing a coin has an expected value of 50 per cent. And the more times you toss the coin the more likely it is that you get heads 50 per cent of the time. When we apply this to predictions or to decisions, what happens is that some people may have very mistaken views, but, insofar as you have a group of people whose members are on average sufficiently knowledgeable, gross mistakes will tend to be marginal and neutralise each other, while the group will tend to make decisions that will be more likely to be correct. Another parallel mechanism that fuels the power of aggregation is what Condorcet identified as the Jury Theorem. If you have a group of people, like a jury, deciding on whether a suspect is guilty or innocent, which is a binary question, and the individual competence of the group members is superior to 0.5, which means they have individually more than a 50 per cent chance of getting the right answer, and their votes are sincere and independent from each other, then the larger the group is the higher the probability that it makes a correct decision. Condorcet’s Jury Theorem (CJT) has been validated from a mathematical point of view, even if it remains controversial to what extent it can be applicable to real world circumstances and whether its conditions really obtain.40 For many modern political philosophers, like John Rawls, the CJT provides an argument in favour of very big groups of decision-makers, and therefore of big democratic majorities. Finally, we find more recent attempts to explain the power of aggregation that derive it not only from how big the groups of decision-makers are, but also from how diverse or plural they are. This is the case, for instance, of Lu Hong and Scott Page’s several theorems, such as the Diversity Trumps Ability Theorem, according to which a group of problem solvers randomly selected and who are sufficiently large and diverse will outperform in the ability of solving problems any subgroup of the most capable among them.41 Even if these theorems, similarly to what happens with the CJT, only work under some specific conditions, such conditions seem to be less practically demanding than those of the CJT. Diversity is the key, and it is usually associated with the size of the group in the sense that large groups, especially if they are randomly selected, tend to be more diverse than smaller ones. These theorems have been revised and analysed in their application to democratic politics by Helene Landemore.42 What is important is that all these variants of the power of aggregation work on the basis of the mere addition of knowledge, preferences, or judgement, regardless of whether there is any specific interaction between the members of the group. The second power of CI, instead, derives from a very specific form of social interaction: namely, deliberation.43 For many scholars in a long tradition that traces back

40 Martí, ‘The Epistemic Conception of Deliberative Democracy Defended’ (n 3) 185–93; Martí (n 22); Landemore (n 5) 147–56; and Linares (n 38) 141–50. 41 Hong and Page (n 24) and Page (n 24). 42 Landemore (n 5). 43 Habermas (n 3); Nino (n 3); Martí, ‘The Epistemic Conception of Deliberative Democracy Defended’ (n 3); Martí (n 22); Landemore (n 5); Linares (n 38); Lafont (n 3).

The Role of New Technologies in Deliberative Democracy  211 to Aristotle as well, deliberating before making a collective decision increases the probability of making a correct one, basically because it minimises the probability of error. Why is it so? There are several mechanisms that explain it. First of all, there is an information pooling effect. No single individual has access to all relevant information. Experts may have some technical knowledge that may be very relevant to make a particular decision, but ordinary citizens may also have had personal experiences regarding the topic to be decided or may have seen others having such experiences in ways that might be relevant to consider as well. Even experts may have individual access only to a fragment of the whole truth. Relevant knowledge and information tend to be dispersed across the society.44 Giving the chance to decision-makers to pool all that information and knowledge before making the decision strengthens their individual and collective capacity to make the correct one. This pooling effect seems to have a clear aggregative dimension. In the end, the size and diversity of the group, again, may be key to strengthening the effect. But the pooling effect only happens if people have the chance to communicate with each other publicly, and it gets more robust when the group members are given also the opportunity to weigh and deliberate the different facts and viewpoints that emerge from this initial pooling.45 In addition to this information pooling effect, deliberation helps the decisionmakers to refine their respective positions, since they first, must think carefully on their views and find the most compelling way to argue for them, and secondly, they may be helped by others to detect logical mistakes or other weaknesses in their reasoning by going through a deliberative process. Thus, deliberation may strengthen individual judgements and facilitate mutual and collective learning in a way that may strengthen the collective ability to make the correct decisions. Finally, and as a result of the latter, deliberation allows some people to change their minds and views, when they are exposed to others’ arguments and ideas, that is, in the face of better reasons, and this in turn may lead the group to larger and more solid (more reason-based) consensuses or agreements, which correlate again with the group’s ability to make correct decisions.46 There is a third power of groups that strengthens their CI and that emerges over time only when aggregation and deliberation have already taken place and reiterated their practice: this is what some people refer to as the power of collaboration and collective learning. When groups of people have a sustained practice of aggregating their views and deliberating together about them, they learn to trust each other in a different, particular way and to collaborate in a deeper form for mutual benefit.47 They may organise themselves in more horizontal, networked, open structures and develop deeper ties based on trust and the common good, which are the basis for the highest levels of CI.

44 Noveck, Smart Citizens, Smarter State (n 24). 45 Martí, ‘The Epistemic Conception of Deliberative Democracy Defended’ (n 3); Martí (n 22). 46 Martí, ‘The Epistemic Conception of Deliberative Democracy Defended’ (n 3); Martí (n 4); Martí (n 22). 47 Benkler, The Penguin and the Leviathan (n 34); Rheingold, Net Smart. How to Thrive Online (n 2); Noveck, Smart Citizens, Smarter State (n 24).

212  José Luis Martí In addition to these three powers, scholars such as Geoff Mulgan have made important contributions to our understanding of the organising principles of CI. Mulgan i­ dentifies five such principles:48 (1) The autonomous commons in the intelligence system, which relates to ‘how much the elements of intelligence are allowed free rein, and not subordinated too easily to ego, hierarchy, assumption or ownership’, and this in turns requires ‘a dialectical approach to intelligence’. (2) The balanced use of the capabilities or elements of intelligence, one that is suited to the tasks at hand. Mulgan identifies nine elements of CI: A live model of the world, observation, focus, memory, empathy, motor coordination, creativity, judgement and wisdom. (3) The capacity to focus, that is, of ‘attending to what really matters and not being distracted’, which in turn has a diverse granularity in the sense that such focus needs to be tuned to the different scales at which it might be applicable. (4) The group’s capacity to be reflexive and recursive, that is, the ability to self-analyse, learn and adapt or change to improve. (5) The capacity to integrate for action, that is, the ability to take coordinated action even in complex situations. All these five ‘principles’ or ‘elements’ are susceptible to being strengthened, even if we need to do more research on the exact ways in which this is so. Finally, there are several dimensions of CI that are critical to the possibility of sustaining and, if possible, strengthening such intelligence, to which scholars have paid due attention. On the one hand, there is the set of rules and procedures that make it possible, first, but also strengthen the group’s ability to act together and make collective decisions, and this has been specifically studied by the philosophical literature on group agency.49 On the other hand, there is the infrastructure, the resources, and other background conditions that may help groups to develop and increase their CI, and this has been studied more carefully by the experts on networks and collective or social minds.50 In addition to that, there exist factors of identity and collective consciousness that may lead CI to its highest levels.51 And, finally, there is the study of how new technologies may decisively contribute to strengthen or augment CI and bring it to totally unprecedented levels.52 It is precisely to this last dimension that I turn in the next section. In sum, CI remains an underdeveloped field of interdisciplinary research, despite its centrality in the way we conceive democracy, and how democracies should work 48 Mulgan (n 24) 65–69. 49 Pettit, The Common Mind. An Essay on Psychology, Society and Politics (n 36); List and Pettit (n 36); Roth (n 36). 50 M Minsky, The Society of Mind (Simon & Schuster, 1987); Rheingold, Smart Mobs. The Next Social Revolution (n 2) and Rheingold, Net Smart. How to Thrive Online (n 2); Benkler, The Wealth of Networks (n 34); Benkler, The Penguin and the Leviathan (n 34); Malone and Bernstein (n 24); Malone, Superminds (n 24); Mulgan (n 24). 51 Rheingold, Net Smart. How to Thrive Online (n 2); Mulgan (n 24). 52 Englebart (n 1); Minsky (n 50); Rheingold, Smart Mobs. The Next Social Revolution (n 2) and Rheingold, Net Smart. How to Thrive Online (n 2); Noveck, Wikigovernment (n 24); Noveck, Smart Citizens, Smarter State (n 24); Malone, Superminds (n 24); Mulgan (n 24).

The Role of New Technologies in Deliberative Democracy  213 to be entirely legitimate and deal with the new factors of crisis mentioned in the ­previous section. However, I hope this outline may be enough to help us in the analysis of how new technologies may serve the values of deliberative democracy in the present world and in our immediate future. IV.  NEW TECHNOLOGIES AND DELIBERATIVE DEMOCRACY

After presenting what deliberative democracy is, and having summarised what we currently know about collective intelligence as the main factor of self-government in the context of a deliberative democracy, let me finally turn to the role the new technologies can play in the current world in regards to such deliberative democracy. And let me start by summarising some of the negative impacts that the current digital revolution is having on democratic politics in general. I am convinced that, all things considered, digital technologies will bring very positive transformations from which we will all benefit. But it is obvious that they have also negative consequences, some of which we are already noticing and which are well known by everyone. I will focus on five of such main threats or concerns. First of all, new technologies have created an unprecedented threat on our privacy and civil and political liberties. Governments, as we learned through the NSA scandal after Edward Snowden’s leak, as well as private companies, may spy on us and have access to large amounts of private and personal data in a way that may be incompatible with freedom and democracy.53 Non-democratic regimes, such as China and Russia, are using technology, from AI and facial recognition to Internet censorship, invigilation and bots-led manipulation, to run unprecedented large programmes of social control, extending the domination they exert over their citizens to almost all levels of social and personal life. But the NSA scandal teaches us that democratic governments may exert this kind of monitoring and control as well. Even worse, private companies, such as Google, may have access to large amounts of information about everyone’s life, including non-customers of the company, which means that they may enjoy high levels of power over many people. Secondly, the Facebook and Cambridge Analytica scandal showed us how access to such large amounts of data may allow some people to manipulate the public, and more specifically, the people’s political behaviour and preferences. Democracies will no longer be the same after the 2016 US Presidential Election. AI vested with big data analysis algorithms and machine learning technology inspired by behavioural science have proven to be effective in influencing people’s judgements and emotions in ways that such people may be unaware of, just as subliminal advertisements could do in the past – which was actually the reason they were banned. New technologies in general may distort democratic politics and make possible new forms of political manipulation and domination from which we need to defend ourselves.

53 Lanier, Who owns the Future? (n 2); Lanier, Ten Arguments (n 2); Tufekci (n 2); Bartlett (n 2); Veliz (n 2).

214  José Luis Martí Thirdly, social media and networks are also playing a negative role in the functioning of democratic politics, and more particularly on public debate and the public sphere. Group polarisation, echo chambers, hyper-partisanship, misinformation, the spread of fake news, the rise of populism, all these phenomena already existed before the digital revolution, but social media platforms such as Facebook, Twitter, and Instagram have specially contributed to intensify all of them up to a very dangerous point for democracy.54 Furthermore, there is no doubt that all these forms of disinformation are particularly damaging for the deliberative ideal of democracy described.55 Fourthly, the rise of new technologies has allowed an unprecedented global concentration of power. If we focus on AI, for instance, only a few governments and private corporations have sufficiently developed research to keep AI under their control. We are talking mostly about China, Russia, Google, Facebook, Apple, Amazon, and Microsoft, none of which has the general interest or the global common good high in their priorities. Regarding the tech private corporations now, the problem is not only that they are big, wealthy and powerful. The problem is that they are globally powerful to such extent that no government on Earth is able to bridle them and control what they do. Take the case of Apple and the tax scandal in Ireland at which even the European Commission was unable to discipline the company. Or take the case of Facebook and the US Congress. If we see democracy as the most legitimate form of government that was born to protect freedom and avoid public and private domination, these new super-powerful actors should be all subjected to the jurisdiction of a democratic global government able to impose some rules and duties and defend the people’s rights. But there is no such thing yet. Fifth, and finally, the current world, global and largely digital, is characterised by a growing complexity. The big challenges we face at a global level, from peace and security maintenance to climate change, and from socioeconomic growing inequalities to global health and the Covid-19 crisis, are all interrelated in a complex way. And technology is also contributing to make things even more complex. It is not only that technology itself is becoming too sophisticated for most ordinary non-techy people. In some cases, it is hard to understand even for experts themselves. Take the example of algorithms combined with machine learning that evolve in ways that make selections that even the computer scientists who initially coded those algorithms are no longer able to understand.56 The existence of technical issues or domains is not new in the history of democracy. Ordinary citizens and politicians have often needed the help of experts in order to deal with some issues. Think of the examples of monetary

54 LW Bennett and A Segerberg The Logic of Connective Action. Digital Media and the Personalization of Contentious Politics (CUP, 2013); Omidyar Group (2017) ‘Is Social Media a Threat to Democracy’, working paper, at www.omidyargroup.com/pov/2017/10/09/social_media_and_democracy/; Tufekci (n 2); Y Benkler, R Faris and H Roberts, Network Propaganda: Manipulation, Disinformation, and Radicalization in American Politics (OUP, 2018); Lanier, Ten Arguments (n 2); Bartlett (n 2); Veliz (n 2). 55 S Chambers, ‘Truth, Deliberative Democracy, and the Virtues of Accuracy: Is Fake News Destroying the Public Sphere?’ Political Studies (2020), published online; S McKey, and C Tenove, ‘Disinformation as a Threat to Deliberative Democracy’ (2020) Political Research Quarterly, published online. 56 Tufekci (n 2).

The Role of New Technologies in Deliberative Democracy  215 policy, investment policy, the health system, or the legal and judicial system. Technology is a new source of complexity, and one particularly hard to tackle from the point of view of deliberative democracy and CI.57 If democracy requires ultimate effective popular control, as I argued in section II, we need the people to understand, first, how the object they are trying to have control over works. In depending on how AI for instance evolves, that might prove to be plainly impossible.58 These are five well-known major threats or negative impacts of technology for the future of our societies and democratic politics. But new technologies have a much more positive role to play in defending and strengthening deliberative democracy. In fact, as I said at the beginning of this chapter, digital technologies might be decisive in strengthening and augmenting individual and collective intelligence, which in turn might be the only possibility for humankind to face effectively major global challenges. Let me explore the most basic ways it may do so. First of all, new technologies are also called information and communication technologies (ICTs). This is so because they are wonderful to help us solve one historical problem: the economy of information. Having access to relevant information and granting it to everyone has always been critical for democracy, but it has also been very costly. Such relevant information, as I said before, is usually dispersed across society. Sometimes it is very difficult to make it emerge, since those who have access to valuable information will have incentives to keep it for themselves, hidden from the eyes of others. Even the information that lies in the hands of the government or the administration has been traditionally unshared or remained hidden behind closed doors. New digital technologies, however, make full disclosure and total transparency possible for the first time at a very low cost.59 And it is very important to notice that this mass of information may flow in both directions. On the one hand, governments may be more open and transparent than ever at no cost or very little cost. On the other, such governments may have access to invaluable information and data coming from their citizens, ranging from feedback, complaints, or suggestions and inputs of any kind, to automatic screening of citizens’ preferences and judgements on very diverse issues.60 Think for instance on what governments and administrations can do by using sentiment analysis techniques, which allow them to screen the social media platforms and anticipate the public’s opinions or reactions regarding any particular issue or policy.61 Or think on the data sharing movement, which attempts to convince people to share their day-to-day data with the administration to help it improve its services and policies in a number of ways. It is obvious that this data sharing may

57 Innerarity (n 2). 58 Bostrom (n 2). 59 A Fung, M Graham and D Weil, Full Disclosure. The Perils and Promise of Full Disclosure (CUP, 2007). 60 Noveck, Wikigovernment (n 24); Noveck, Smart Citizens, Smarter State (n 24). 61 B Noveck, ‘CrowdLaw: Collective Intelligence and Lawmaking’ (2018) 40(2) Analyse & Kritik 359–80; D Sharma, M Sabharwal, V Goyal and M Vij, ‘Sentiment Analysis Techniques for Social Media Data: A Review’ in A Luhach, J Kosa, R Poonia, XZ Gao and D Singh (eds), First International Conference on Sustainable Technologies for Computational Intelligence. Advances in Intelligent Systems and Computing, vol 1045 (Springer, 2020).

216  José Luis Martí come with associated risks of social control and privacy violations, but there are ethical ways to treat such data as a common good, very distant from the use private corporations are currently making of it, and subject to strict regulations, protecting the citizens’ anonymity at the same time. These are just two examples of the impressive technologies of big data analysis that relate, in turn, to machine learning and AI algorithms that may be an invaluable support to lawmaking and policymaking. As it happens, the most promising developments will probably come from the combination of different technologies and techniques, and they may have a great impact in fostering the power of aggregation that lies behind CI, and ultimately behind all forms of democratic decision-making. ICTs are not only good in allowing information to flow in all directions, but they are also amazing in aggregating really large amounts of information. Officials and public decision-makers are now able to process unprecedented amounts of relevant information that can significantly strengthen their ability to make correct decisions, that is, their CI. This power of aggregation gets boosted also in respect to voting procedures. Electronic voting has been a reality for decades now,62 making it possible to scale up democracy to, again, unprecedented levels. The security of e-voting systems has improved very significantly since the earliest experiments were done in the 1960s. And Blockchain technology is the last innovation that allows governments or private organisations to attain the highest levels of security ever known.63 Several organisations, for instance, have already developed Blockchain-secured electronic voting systems in which citizens or customers may vote through their mobile phones very easily in seconds. Take the examples of the Votem platform (www.votem.com), or the Polys initiative from the Kaspersky Lab (www.polys.me). But think also on the Democracy Earth initiative (www.democracy.earth) that has been working for years in creating a global voting system that might potentially allow every human being on earth with an Internet connection to vote in a secured voting process. The potentiality of new technologies to aggregate people’s preferences at a global scale also opens new opportunities to think on global democracy and articulate better responses to the global and complex issues that I mentioned above. But new technologies are not only wonderful to fuel the power of aggregation. They can also pay great service to the power of deliberation. At a very basic level, ICTs are, again, communication technologies that allow people very far away from each other to communicate at no cost or very little cost. Citizens may now engage in political debate and public deliberation with other people all around the world. Many scholars have emphasised the importance that such a fact will have in what has been called the deterritorialisation of politics and democracy.64 This would be a radical shift. Democratic politics has always been territorial in the sense that the scope

62 D Gritzalis, ‘Principles and Requirements for a Secure E-Voting System’ (2002) 21(6) Computers and Security 539–56. 63 A Ben Ayed, ‘A Conceptual Secure Blockchain-Based Electronic Voting System’ (2017) 9(3) International Journal of Network Security and Its Applications. 64 Benkler, The Wealth of Networks (n 34); Rheingold, Net Smart. How to Thrive Online (n 2); M Castells, Networks of Outrage and Hope (Polity Press, 2012).

The Role of New Technologies in Deliberative Democracy  217 and the limits it had were defined by the limits of the territory where the relevant political community was based, either the polis or city, the region, the country, or even the transnational community. New technologies, however, have the potential to dynamite this dimension. If we need to decide whether to impose significant restrictions on car traffic in the city of Barcelona, why exclude from this debate citizens living in other cities nearby, or in other cities in Spain, or anywhere in the world? Any person might potentially have a relevant insight, a brilliant and innovative idea, or a personal relevant experience that she might want to share with the others to the benefit of collective deliberation and better decision-making. In the analogical world there was a physical limit to the kind of conversation that democratic politics presupposed. But in a digital world there is no such limit anymore. This brings me to a second point concerning the power of deliberation. The traditional view says that deliberation is only genuine and fruitful if it happens between relatively small numbers of people. We all have the experience of sitting in a room with 50 other people for a meeting and having very little chance to talk or no chance at all. As a university professor I can say that the most fruitful academic debates or seminars with students happen between no more than 10 people around a table. Here the obstacle is not only physical, understood as spatial, but a structural difficulty to scale up genuine deliberation, a free exchange of arguments and counterarguments, to numbers of participants that go beyond 10. But what initially appears to be a difficulty, may easily become an opportunity. The literature on online deliberation has grown enormously in the last 15 years.65 We now know more and more about how deliberation might be structured in online systems in a way that not only makes it possible for large amounts of people to deliberate in a genuine way, but actually maximises the quality of argumentation as well. If you think carefully on it, it is easy to see why. Space and time are significant limitations in face-to-face deliberation. First of all, it is hard to find adequate spaces for large numbers of people to meet and deliberate. Secondly, and more importantly, if you try to have a sequential deliberation in a plenary assembly with many people, it may be impossible to give them all the chance to participate, and the meeting will inevitable turn boring, loose and unproductive after a few hours. But the online world does not suffer from spatial or time constraints. You may start a deliberation on an online platform in a forum-like structure and thousands of citizens may participate asynchronically, read and benefit from what others have said and also make their own large or tiny contribution. It all depends on how the design is done, on how deliberation is structured.66 All it requires is the understanding that online deliberation

65 T Davies and SP Gangadharan, Online Deliberation: Design, Research, and Practice (CSLI Publications, 2009); YM, Baek, M Wojcieszak and MX Delli Carpini, ‘Online versus face-to-face deliberation: Who? Why? What? With what effects?’ (2012) 14(3) New Media & Society 363–83; WB Towne and JD Herbsleb, ‘Design Consideration of Online Deliberations Systems’ (2012) 9(1) Journal of Information Technology & Politics 97–115; W Zhang, X Cao and MN Tran, ‘The Structural Features and the Deliberative Quality of Online Discussions’ (2012) 30(1) Telematics and Informatics 74–86; D Frierss and C Eilders, ‘A Systematic Review to Online Deliberation Research’ (2015) 7(3) Policy and Internet 319–39; L Cervone, Digital Technologies for Deliberative Democracies. Models and Applications for Continuous Civic Engagement (manuscript, Thesis submitted at the University of Bolonia, 2017). 66 Davies and Gangadharan (n 65); Baek, Wojcieszak and Delli Carpini (n 65); Towne and Herbsleb (n 65); Zhang, Cao and Tran (n 65).

218  José Luis Martí has its own rules and properties. It may be as genuine as small group face-to-face deliberation, but it simply achieves its results in a different form. There exist several successful examples of how to organise quite good online political deliberation, such as the online platform Better Reykjavik67 in Iceland, designed by the Citizens Foundation, or the Platform Decidim68 in Barcelona. The most important shift when you turn online is that deliberation must be regarded as ongoing and very long-term, and also that contributions might come in very different forms and qualities: sometimes in the form of long, well-grounded written interventions, other times in the form of very short, but decisive and highly influential comments. We need to learn more, however, about how to maximise the quality of online deliberation and do it in a way that remains compatible with really large numbers of participants. Would it be possible to organise a long-term deliberation with one million people? Or with the 47 million Spanish citizens? Or with the population of the whole planet? The most important challenge is to discover better ways to structure argumentation in a way that machine learning and AI may help us to identify who is making similar arguments in separate discussions and which arguments gather more support and emerge as stronger than others. And there are currently several efforts being done in this direction by several research groups in the world.69 If you could organise thousands of smaller, first level online discussions, and then use digital technology to scale up those conversations to second-level, wider ones, identifying quickly the kind of arguments and counterarguments that emerge similarly at both levels, you might then easily escalate this model to a number of levels, and therefore reach a potentially quasi-infinite number of participants. The spectacular progress that AI is making in recent years in the area of natural language analysis allows us to predict that this will be possible very soon. And the next challenge will be then to find out which are the optimal conditions at which such hyper-deliberation may take advantage of dispersed knowledge, distinct talents, different points of views and creativity, etc; in one word, of CI. These comparative advantages of online deliberation are not a panacea. We still face huge difficulties in avoiding group polarisation, fake news and debate manipulation through social media platforms, such as Facebook and Twitter. The most recent development is that the companies who own these platforms seem to be, for the first time, interested in improving the quality of the debate that they host, and avoid fake news and other forms of infoxication. Achieving a good quality of deliberation under controlled conditions in a well-designed public platform does not avoid the threats and interferences that privately controlled communications may introduce in the informal public sphere. But people will not stop using the existing technologies to communicate with each other from one corner of the planet to another. In fact, we are just at the beginning of a whole new era that will be characterised and structured

67 https://reykjavik.is/en/better-reykjavik-0. 68 https://www.decidim.barcelona/?locale=es. 69 See, for instance, T Krauthoff, C Meter, M Baurmann, G Betz and M Mauber, ‘D-BAS. A Dialogue Based Online Argumentation System’, in S Modgil, K Budynska, and J Lawrence (eds), Computational Models of Argument. Proceedings of COMMA 2018 (IOS Press, 2018) 325–26.

The Role of New Technologies in Deliberative Democracy  219 over such technologies. What we need is to learn more and faster about how digital technologies may work in favour of CI and not in detriment of it.70 And, ideally, we should not leave that research in the hands of the few owners of the biggest social networks in the world, because, as I said, they have already accumulated too much power. Finally, the area that remains more underexplored is the contribution that new technologies may make to foster the power of collaboration. The early visionaries of a hybrid CI, a collective intelligence that gets augmented and strengthened by the use of digital technologies, as in Douglas Englebart’s dream, always thought that technology has the potential to incentivise human collaboration, disrupting the deepest overarching principle of our capitalist, modern societies – namely, self-interested individualism – and helping humans to find much better articulations for mutual cooperation under the structure of powerful, horizontal social networks.71 And it is true that we already have some real examples that show that they might have been right all this time. Perhaps the stellar one is Wikipedia. But we are still making a very slow progress in understanding the real underlying principles that may extend the success of Wikipedia to all other areas of social and political life. Technologies themselves are developing as we discuss this, so it is difficult to discover all their real potential, while we still do not know where they will lead us. It is vital that we continue doing research on this idea of hybrid or tech-enabled CI.72 Let me conclude by mentioning a very promising new approach and methodology that is specifically oriented to do that, to research on how new technologies may help public authorities of any kind to make better laws or public decisions taking advantage of tech-empowered collective intelligence: this is the basic idea of CrowdLaw.73 CrowdLaw is emerging as a new global movement of scholars, democratic theorists, public innovators, lawyers, etc, all committed to the aim of strengthening the quality of lawmaking and public decision-making, and at the same time its legitimacy, by using new technologies that can empower CI, under the assumption that, as we saw in the last section, relevant knowledge and adequate talents and skills are dispersed in our societies, and when adequately organised, they can decisively help us to improve our governance. In conclusion, deliberative democracy is suffering many pressures today, many of which originate or become aggravated by the emergence of digital technologies. Some people even talk about a global crisis of democracy. And it is true that many people feel disengaged and very distant from democratic politics. But the truth is that

70 Rheingold, Net Smart. How to Thrive Online (n 2). 71 Englebart (n 1); Minsky (n 50); Rheingold, Smart Mobs. The Next Social Revolution (n 2) and Rheingold, Net Smart. How to Thrive Online (n 2); Benkler, The Wealth of Networks (n 34); Benkler, The Penguin and the Leviathan (n 34). 72 Noveck, Smart Citizens, Smarter State (n 24); Malone and Bernstein (n 24); Malone, Superminds (n 24); Mulgan (n 24); P De Filippi and A Wright, Blockchain and the Law. The Rule of Code (Harvard University Press, 2018). 73 https://crowd.law; Noveck, Smart Citizens, Smarter State (n 24); Noveck (n 61); V Alsina and J Luis Martí, ‘The Birth of the CrowdLaw Movement: Tech-Based Participation, Legitimacy, and the Quality of Lawmaking’ (2018) 40(2) Analyse & Kritik 337–58.

220  José Luis Martí such technologies will not disappear, and they are not the only cause of this eventual crisis. On the contrary. We face too many and too complex existential threats today that are on an unprecedented scale. If anything can save the deliberative democratic legitimacy of our systems, that is precisely a wise use of digital technology. It is only that we need to know it better and develop it in the right direction. And yet, digital technologies must play not only a defensive role of democracy, as we know it, but also a transformative, creative one that help us to make democracy evolve into something new and better. It is time for humble learning and growth. All together now.

Part Three

Democracy and its Enemies

222

14 Is Democracy Still the Worst Form of Government Except All Others? GIANFRANCO PASQUINO*

I. INTRODUCTION

‘M

any forms of Government have been tried, and will be tried in this world of sin and woe. No one pretends that democracy is perfect or all-wise. Indeed it has been said that democracy is the worst form of Government except for all those other forms that have been tried from time to time ….’ Winston Churchill’s long, duly elaborate sentence, pronounced 11 November 1947, has been and continues to be widely quoted, especially by those who want to praise democracy without being criticised. It is my opinion that this sentence should be more correctly interpreted as a sober English understatement of true appreciation for democracy. I am confident that Churchill himself would agree with my rephrasing the assessment, mind you, it was not his own assessment, he was reporting. Hence, he would probably state that certainly democracy has drawbacks and shortcomings. Nevertheless, it is the form of government that up to this day has clearly demonstrated it is able to function better than any known alternative. To be even more precise: all the alternatives that have been tried so far, and they are many, have proved to be worse than democracy, than existing democracies. In fact, it is interesting to remark that nobody among the many contemporary critics of democracy has gone so far as to propose a full-blown alternative. At the most, some improvements have been suggested to be introduced into the existing democratic frameworks, the most elaborate ones being the different forms of ‘deliberative democracy’.1 The only

* Alma Mater Studiorum Bologna. Gianfranco Pasquino is Emeritus Professor of Political Science at the University of Bologna. Former President of the Italian Society of Political Science (2010–2013), he is fellow of the Accademia dei Lincei. Co-editor of The Oxford Handbook of Italian Politics (2015), his most recent book is Italian Democracy. How It Works (2020). 1 JS Fishkin, Democracy When the People Are Thinking. Revitalizing our Politics Through Public Deliberation (OUP, 2019); A Floridia, From Participation to Deliberation: A Critical Genealogy of Deliberative Democracy (ECPR Press, 2017).

224  Gianfranco Pasquino exception that has been somewhat praised is represented by (the type of) populism suggested by some scholars2 and practised by some political leaders (most recently, to the full, by Hugo Chavez in Venezuela). It may be interesting to stress that many Western intellectuals, professors of law and political science, columnists, mass media operators and, of course, politicians frequently criticise their respective democratic regimes as well as, often, the very idea of democracy. At the same time, all over the world the opponents of nondemocratic regimes courageously and obstinately carry out their dangerous struggle against non-democratic regimes exactly in the name of Western democracy. It is the democracy(ies) they have seen at work while being in exile in Paris or London, while working in some European countries, while studying at Oxford or Harvard, while watching CNN. Perhaps, one can remark that those ‘democratic’ opponents in nondemocratic regimes are fighting in the name of the democratic ideal, while most of the problems identified by Western and non-Western critics concern the reality of existing democracies, their functioning, their performance, their capability to meet the citizens’ expectations, to keep their promises.3 The distinction between democracy as an ideal and really existing democracies (made most precisely and convincingly by Sartori in 1987)4 must be kept in mind in order to avoid all kinds of analytical confusions. Is there a crisis of democracy as an ideal or are there problems in the working of really existing democracies? Would Winston Churchill suggest searching for a form of government transcending democracy or would he pragmatically point at all possible improvements to existing democracies (even those not in the Anglo-Saxon mould)? In this chapter, I will first deal with the most difficult task of defining ‘what is a democracy’. Then, on the basis of the definition I will attempt to classify the existing political regimes and to assess how many of them can be considered democracies and whether there have been significant negative developments in recent times. Next, I will explore whether the expression ‘crisis of democracy’ is justified especially in the light of the appearance of the populist challenge. Claiming that populism is not the only challenger because religious fundamentalism must be taken into consideration, my analysis will disentangle what is a crisis of the democratic ideal and what are the problems in the functioning of really existing democracies. Then I will turn to the thorny issue of the kind of damages that the populists may produce to the body of democracy. In the end, what one may want to call the litmus test is represented by the evaluation of democracy on the part of the ‘democratic’ citizens themselves. Even though the citizens may not necessarily be the best judges, because often they are carried away by circumstances and emotions, their opinions (must) carry a lot of weight. In a democracy it is up to them to decide how bad (or how good) is democracy as a form of government. It is also up to them to say whether more than 70 years after Churchill’s statement, other forms of government may seem to be more­ appealing and are considered less bad than the democracy(ies) that are known.



2 E

3 N 4 G

Laclau, On Populist Reason (Verso, 2005); C Mouffe, For a Left Populism (Verso, 2019). Bobbio, The Future of Democracy (Polity, 1987). Sartori, Theory of Democracy Revisited (Chatham House Publishers, 1987), 2 vols.

Is Democracy Still the Worst Form of Government Except All Others?  225 II.  DEMOCRACY, DEMOCRACIES, ADJECTIVES

An acceptable definition of democracy is required before proceeding to assess the strength and quality of contemporary democracies and them being the least objectionable of all forms of government. Rivers of words have been spilled upon a variety of definitions,5 but a working definition is absolutely indispensable. Otherwise, scholars and analysts run the risk, some of them knowingly and deliberately, but no less guilty, of constructing a democratic straw man and to attribute to him all the shortcomings and diseases of a failing democracy. On the contrary, in order to see which democracies are being eroded, are in decline or have ‘died’ it is indispensable to define with some precision what is to be considered a democracy in the twenty-first century. There are plenty of confused, misleading, often manipulated definitions of what is a democracy. In many instances, some adjectives are added, such as, for instance, ‘popular’, ‘guided’, ‘socialist’, that thwart the true meaning and content of democracy (this is not the case of Collier and Levitsky in 1997 whose adjectives contribute to a better understanding of the variety of existing democracies) and make any analysis devoid of meaning and substance.6 To start with, scholars are, or ought to be, aware that resorting to the etymology, democracy as ‘power of the people’, is necessary, but insufficient. Rightly, we have all learned that both power and people require many specifications. To make a very long story short, most specifications have been formulated through time and most scholars have come to the conclusion that a regime may be considered democratic when it contains two composite elements: a cluster of rights and a set of institutional mechanisms and structures.7 Without, on the one hand, civil and political rights and, on the other, free and fair elections, separation of powers, checks and balances and political accountability, no regime can be defined as democratic. Then, of course, all democratic regimes can be classified with reference to the way they respect, protect and promote civil and political rights, to the integrity of their electoral rules and procedures, to the existence of the rule of law, to the working of their institutions. Indeed, the issue of the quality of democracy deserves our attention both when dealing with specific political systems and in comparative perspective.8 Many analysts are willing to stress that for a democracy to come into being and to exist, regular elections must be held. While, of course, one can bluntly and correctly maintain: ‘no elections no democracy’, the opposite ‘elections hence democracy’ is not necessarily true. For a variety of reasons, in many authoritarian regimes elections have been held in the past9 and even today some non-democratic regimes hold 5 See G Sartori, Democrazia e definizioni (Il Mulino, 1957); G Sartori, Democratic Theory (Wayne University Press, 1962). 6 D Collier and S Levitsky, ‘Democracy with Adjectives: Conceptual Innovation in Comparative Research’ (1997) 3 World Politics 430–51. 7 Here, I deliberately avoid the issue of the socio-economic requisites of democracy. The analyses by Lipset (1994) and Huntington (1991) are both illuminating. 8 For a preliminary attempt, see L Diamond and L Morlino, (eds), Assessing the Quality of Democracy (The Johns Hopkins University Press, 2005). 9 G Hermet, A Rouquié and J Linz, Des élections pas comme les autres (Presses de la Fondation Nationale des Sciences Politiques, 1978); G Hermet, R Rose and A Rouquié (eds), Elections Without Choice (Palgrave, 1978).

226  Gianfranco Pasquino elections. However, those elections are essentially neither free nor fair,10 and their most important goal is definitely not that of transforming the regime into a democracy, but of acquiring some international legitimacy (and of obliging the opponents to come into the daylight to be apprehended and made harmless). On my part, I strongly resist the temptation to call these regimes ‘electoral democracies’.11 Where elections are neither free nor fair and have no chances of leading to the replacement of those in office by a team of those in the opposition, one cannot speak of democracy, not even of an electoral democracy. Still, non-democratic elections can be looked at in two different ways. On one hand, they are a homage to a revered democratic practice performed in order expediently to meet some international standards (in some cases, successfully). On the other hand, though far from certainty,12 the electoral process, electoral campaigns and electoral mobilisations may all be learning experiences. They may teach something about how to run political activities. They may stimulate the interest of all the citizens and may contribute to the weakening and discarding of a non-democratic regime. Democracy as an ideal combines freedom with equality and puts the emphasis on political participation. Different degrees and combinations of freedom, equality and political participation give birth to different types of really existing democracies. From time to time, some scholars13 emphasise that democracy as an ideal requires the existence of citizens who are highly informed and knowledgeable, have equal possibilities of affecting political decisions, are willing and capable of participating at any point in time and, some would add, nourish strong feelings of efficacy. None of these conditions is ever fully attained. Indeed, the ideal democracy is bound to remain a (distant) ideal because ‘ideal’ citizens simply do not exist or, in any case, are always a tiny minority. In practice, in a really existing democracy all citizens are free to decide how much energy and time they are willing to put into the acquisition of political knowledge. They are free to decide whether, when and how much they want to participate. The(ir) feelings of efficacy depend on too many uncontrollable factors, none of which has a place in the definition of democracy. By way of comparison, nondemocracies do not want their citizens to be informed and knowledgeable. Indeed, they suppress and/or manipulate all kinds of information. Often, they either prevent the citizens from participating or oblige them to participate, that is, non-democratic regimes forcibly mobilise their citizens (subjects). For what is known of contemporary non-democratic regimes,14 it would be almost impossible to find citizens who show feelings of efficacy to the understandable exception of those close to the rulers. Those who criticise democracy point to the very paradoxical situation in which the power

10 A Schedler (ed), Electoral Authoritarianism. The Dynamics of Unfree Competition (Lynne Rienner, 2006). 11 LF Diamond, Developing Democracy. Toward Consolidation (The Johns Hopkins University Press, 1999). 12 Schedler (n 10). 13 Recently CH Achen and LM Bartels, Democracy for Realists: Why Elections Do Not Produce Responsive Government (Princeton University Press, 2016). 14 S Levitsky and L Way, Competitive Authoritarianism. Hybrid Regimes After the Cold War (CUP, 2012).

Is Democracy Still the Worst Form of Government Except All Others?  227 to elect the representatives and the decision-makers is exercised by poorly informed citizens whose political participation is volatile and whose sense of efficacy is quite limited, who will not be in a position to evaluate the performance of those in office and to enforce accountability. It is a poor consolation to say that in any case democratic citizens fare better than citizens/subjects in non-democratic countries and that they have the possibility of improving on all counts. A democratic regime populated by alienated and apathetic citizens is bound not to last. A.  Identifying and Measuring Democracies Equipped with the two clusters of elements containing the rights of the i­ndividuals and the mechanisms and structures of the political system, it is now possible to proceed to the identification of the various political regimes and to their classification. Several organisations have proceeded to this type of exercise, for instance, Freedom House and, more recently, V-Dem. Because of the clarity and simplicity of the criteria utilised (that would have pleased Churchill), I have decided to rely on the data collected and presented by the Economist Intelligence Unit that are being used to elaborate a Democracy Index. Five components concur with the definition of the Democracy Index: (1) electoral process and pluralism; (2) civil liberties; (3) the functioning of government; (4) political participation; and (5) political culture. On this basis, The Economist has codified four types of political systems: full democracies, flawed democracies, hybrid regimes, and authoritarian regimes as follows: Full democracies are nations where civil liberties and fundamental political freedoms are not only respected but also reinforced by a political culture conducive to the thriving of democratic principles. These nations have a valid system of governmental checks and balances, an independent judiciary whose decisions are enforced, governments that function adequately, and diverse and independent media. These nations have only limited problems in democratic functioning. Flawed democracies are nations where elections are fair and free and basic civil liberties are honoured but may have issues (eg, media freedom infringement and minor suppression of political opposition and critics). These nations have significant faults in other democratic aspects, including underdeveloped political culture, low levels of participation in politics, and issues in the functioning of governance. Hybrid regimes are nations with regular electoral frauds preventing them from being fair and free democracies. These nations commonly have governments that apply pressure on political opposition, non-independent judiciaries, widespread corruption, harassment and pressure placed on the media, anaemic rule of law, and more pronounced faults than flawed democracies in the realms of underdeveloped political culture, low levels of participation in politics, and issues in the functioning of governance. Authoritarian regimes are nations where political pluralism has vanished or is extremely limited. These nations are often absolute monarchies or dictatorships. They may have some conventional institutions of democracy but with meagre significance, infringements and abuses of civil liberties are commonplace, elections (if they take place) are not fair and free, the media is often state-owned or controlled by

228  Gianfranco Pasquino groups associated with the ruling regime, the judiciary is not independent, and there are omnipresent censorship and suppression of governmental criticism. The following table gives the number and percentage of countries and the percentage of the world population for each regime type in 2018. Table 1  Full democracies, flawed democracies, hybrid regimes, authoritarian regimes Type of regime

Score (s)

Number of countries

Percentage of countries

Full democracies

Percentage of world population

8